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Columbia SKnifamto Hectares 

CONSTITUTIONAL GOVERNMENT IN THE 
UNITED STATES 

GEORGE BLUMENTHAL FOUNDATION 

1907 



\ 


COLUMBIA 
UNIVERSITY PRESS 
SALES AGENTS 

NEW YORK: 

LEMCKE & BUECHNER 
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LONDON: 

HENRY FROWDE 
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TORONTO: 

HENRY FROWDE 

25 Richmond St., W. 


COLUMBIA UNIVERSITY LECTURES 


CONSTITUTIONAL GOVERNMENT 
IN THE UNITED STATES 


BY 

WOODROW WILSON, Ph.D., LL.D. 

PRESIDENT OF PRINCETON UNIVERSITY 



Nefo gflrfc 

COLUMBIA UNIVERSITY PRESS 
1911 


All rights reserved 






\<\' ,3 

v>X> 


Copyright, 1908, 

By COLUMBIA UNIVERSITY PRESS. 

Set up and electrotyped. Published May, 1908. Reprinted 
November, 1911; January, 1913; December, 1914. 


L L 

63J9A1 
MAY 18 1942 



Notinoob -Presss 

J. S. Cushing Co. — Berwick & Smith Co. 
Norwood, Mass., U.S.A. 




PREFATORY NOTE 


These lectures are not intended as a systematic dis¬ 
cussion of the character and operation of the government 
of the United States. They are intended merely to 
present it in some of its more salient features from a fresh 
point of view and in the light of a fresh analysis of the 
character and operation of constitutional government. It 
is hoped that they will be thought, for this reason, to be 
serviceable in the clarification of our views as to policy 
and practice. 

WOODROW WILSON. 

Princeton, New Jersey, 

March 24, 1908. 




CONTENTS 

OHAPTEB PAGE 

I. What is Constitutional Government? ... 1 

II. The Place of the United States in Constitu¬ 
tional Development.25 

III. The President of the United States ... 54 

IV. The House of Representatives .... 82 

V. The Senate. 112 

VI. The Courts .. 142 

VII. The States and the Federal Government . . 173 

VIII. Party Government in the United States . . 198 

INDEX. 223 


vii 




































































CONSTITUTIONAL GOVERNMENT 
IN THE UNITED STATES 


i 

WHAT IS CONSTITUTIONAL GOVERNMENT? 

My object in the following lectures is to examine the 
government of the United States as a constitutional system 
as simply and directly as possible, with an eye to practice, 
not to theory. 

And yet at the very outset it is necessary to pause upon 
a theory. The government of the United States cannot 
be intelligently discussed as a constitutional system until 
we clearly determine what we mean by a “constitutional” 
government; and the answer to that question is in effect 
a theory of politics. 

By a constitutional government we, of course, do not 
mean merely a government conducted according to the 
provisions of a definite constitution; for every modern 
government with which our thoughts deal at all has a 
definite constitution, written or unwritten, and we should 
not dream of speaking of all modern governments as 
“constitutional.” Not even when their constitutions are 
written with the utmost definiteness of formulation. The 
constitution of England, the most famous of constitutional 
governments and in a sense the mother of them all, is not 

B 1 


2 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

written, and the constitution of Russia might be without 
changing the essential character of the Czar’s power. 7 A 
constitutional government is one whose powers have been 
adapted to the interests of its people and to the mainte¬ 
nance of individual liberty.) That, in brief, is the concep¬ 
tion we constantly make use of, but seldom analyze, when 
we speak of constitutional governments. 

Roughly speaking, constitutional government may be 
said to have had its rise at Runnymede, when the barons 
of England exacted Magna Carta of John; and that famous 
transaction we may take as the dramatic embodiment 
alike of the theory and of the practice we seek. The barons 
met John at Runnymede, a body of armed men in counsel, 
for a parley which, should it not end as they wished it to 
end, was to be but a prelude to rebellion. They were not 
demanding new laws or better, but a righteous and con¬ 
sistent administration of laws they regarded as already 
established, their immemorial birthright as Englishmen. 
They had found John whimsical, arbitrary, untrustworthy, 
never to be counted on to follow any fixed precedent or 
limit himself by any common understanding, a lying 
master who respected no man’s rights and thought only 
of having his own will; and they came to have a final 
reckoning with him. And so they thrust Magna Carta 
under his hand to be signed, — a document of definition, 
which spoke of rights which had been disregarded and 
which must henceforth be respected, of practices until now 
indulged in which must be given over and remedied alto¬ 
gether, of ancient methods too long abandoned to which 
the king must return; and their proposal was this: ‘ Give 
us your solemn promise as monarch that this document 
shall be your guide and rule in all your dealings with us, 


WHAT IS CONSTITUTIONAL GOVERNMENT? 3 

attest that promise by your sign manual attached in solemn 
form, admit certain of our number a committee to observe 
the keeping of the covenant, and we are your subjects in 
all peaceful form and obedience; — refuse, and we are 
your enemies, absolved of our allegiance and free to choose 
a king who will rule us as he should.' Swords made uneasy 
stir in their scabbards, and John had no choice but to sign. 
These were the only terms upon which government could 
be conducted among Englishmen. 

That was the beginning of constitutional government, 
and shows the nature of that government in its simplest 
form. There at Runnymede a people came to an under¬ 
standing with its governors, and established once for all 
that ideal of government which we now call “ constitu¬ 
tional," — the ideal of a government conducted upon the 
basis of a definite understanding, if need be of a formal 
pact, between those who are to submit to it and those 
who are to conduct it, with a view to making government 
an instrument of the general welfare rather than an arbi¬ 
trary, self-willed master, doing what it pleases, — and 
particularly for the purpose of safeguarding individual 
liberty. 

The immortal service of Magna Carta was its formula¬ 
tion of the liberties of the individual in their adjustment 
to the law. The day of Magna Carta was not a day in 
which men spoke of political liberty or acted upon set 
programs of political reform; but the history of con¬ 
stitutional government in the modern world is the history 
of political liberty, the history of all that men have striven 
for in the reform of government, and one has the right to 
expect to get out of it at least a workable conception of 
what liberty is. Certainly the documents of English his- 


4 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


tory and the utterances of the greater public men on both 
sides of the water supply abundant material for the defini¬ 
tion. “If any one ask me what a free government is, I 
reply, it is what the people think so,” said Burke, going 
to the heart of the matter. The Declaration of Indepen¬ 
dence speaks to the same effect. We think of it as a highly 
theoretical document, but except for its assertion that all 
men are equal it is not. It is intensely practical, even upon 
the question of liberty. It names as among the “ inalienable 
rights” of man the right to life, liberty, and the pursuit of 
happiness, as does the Virginia constitution and many 
another document of the time; but it expressly leaves to 
each generation of men the determination of what they 
will do with their lives, what they will prefer as the form 
and object of their liberty, in what they will seek their 
happiness. . Its chief justification of the right of the colo¬ 
nists to break with the mother country is the assertion that 
men have always the right to determine for themselves 
by their own preferences and their own circumstances 
whether the government they live under is* based upon 
such principles or administered according to such forms as 
are likely to effect their safety and happiness.^ In brief, 
political liberty is the right of those who are governed to 
adjust government to their own needs and interests. 

That is the philosophy of constitutional government. 
Every generation, as Burke said, sets before itself some 
favorite object which it pursues as the very substance of 
its liberty and happiness. The ideals of liberty cannot 
be fixed from generation to generation; only its concep¬ 
tion can be, the large image of what it is. Liberty fixed 
in unalterable law would be no liberty at all. Government 
is a part of life, and, with life, it must change, alike in its 


WHAT IS CONSTITUTIONAL GOVERNMENT? 


5 


objects and in its practices; only this principle must 
remain unaltered, — this principle of liberty, that there 
must be the freest right and opportunity of adjustment. 
Political liberty consists in the best practicable adjustment * 
between the power of the government and the privilege 
of the individual; and the freedom to alter the adjustment 
is as important as the adjustment itself for the ease and 
progress of affairs and the contentment of the citizen. 

There are many analogies by which it is possible to illus¬ 
trate the idea, if it needs illustration. We say of a boat 
skimming the water with light foot, ‘How free she runs/ 
when we mean, how perfectly she is adjusted to the force 
of the wind, how perfectly she obeys the great breath out 
of the heavens that fills her sails. Throw her head up into 
the wind and see how she will halt and stagger, how every 
sheet will shiver and her whole frame be shaken, how in¬ 
stantly she is “in irons,” in the expressive phrase of the 
sea. She is free only when you have let her fall off again 
and get once more her nice adjustment to the forces she 
must obey and cannot defy. We speak of the ‘free’ 
movement of the piston-rod in the perfectly made engine, 
and know of course that its freedom is proportioned to 
its perfect adjustment. The least lack of adjustment will 
heat it with friction and hold it stiff and unmanageable. 
There is nothing free in the sense of being unrestrained in 
a world of innumerable forces, and each force moves at 
its best when best adjusted to the forces about it. Spirit¬ 
ual things are not wholly comparable with material things, 
and political liberty is a thing of the spirits of men; but 
we speak of friction in things that affect our spirits, and 
do not feel that it is altogether a figure of speech. It is 
not forcing analogies, therefore, to say that that is the 


6 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


freest government in which there is the least friction,— 
the least friction between the power of the government 
and the privilege of the individual. The adjustment may 
vary from generation to generation, but the principle never 
can. A constitutional government, being an instrumen¬ 
tality for the maintenance of liberty, is an instrumentality 
for the maintenance of a right adjustment, and must have 
a machinery of constant adaptation. 

English writers have not often enough noticed that in 
the very generation which saw Magna Carta formulated 
and signed in England, a similar transaction was witnessed 
in Hungary. Magna Carta was signed in 1215; seven 
years later, in 1222, the Magyar nobles of Hungary exacted 
of their king a document which ran upon singularly similar 
lines, a “ Golden Bull,” to which those who struggled for 
privilege in Hungary always looked back as Englishmen 
looked back to Magna Carta. But two remarkable differ¬ 
ences existed between Magna Carta and the Golden Bull 
which it is worth while to dwell upon for a moment, because 
of their significance with regard to the question we are dis¬ 
cussing, — the nature of constitutional government. For 
all she made a similar beginning, Hungary did not obtain 
constitutional government, and England did. Undoubt¬ 
edly the chief reason was that the nobles of Hungary 
contended for the privileges of a class, while the barons of 
England contended for the privileges of a nation, and that 
the Englishmen were not seeking to set up any new law 
or privilege, but to recover and reestablish what they 
already had and feared they should lose. Another and 
hardly less significant reason was that the Englishmen 
provided machinery for the maintenance of the agreement, 
and the Magyars did not. 


WHAT IS CONSTITUTIONAL GOVERNMENT? 


7 


Of course the parliament of England runs back in its 
origins beyond 1215; but the parliament which Simon of 
Montfort set up in 1265 and Edward confirmed in 1295 
was the first that definitely received and accepted the 
trust of preserving the liberties, the free choices, of England 
against the wilful preferences of her kings, upon the basis 
laid in Magna Carta; and until that parliament was set 
up, with its burgesses and knights of the shire, the barons 
had attempted, as again and again they forced upon their 
kings a renewal of the great charter, to provide against 
its infringement by the watchfulness of representatives 
delegated from their own ranks to see that faith was kept. 
They had the practical instinct to see that promises upon 
paper are only promises upon paper, unless the party that 
demands privilege is as alert and as ready for action as 
the party that exercises power. The Magyar nobles pro¬ 
vided no such machinery of maintenance and adjustment, 
and lost what they had gained. No doubt free parlia¬ 
ments are as important as definite charters. 

And yet the other difference is the deeper and, in a sense, 
the more essential. The barons at Runnymede were not 
speaking for themselves as a class, but for Englishmen of 
every rank and privilege, and they were claiming nothing 
novel or of their own peculiar preference and invention, 
but rights which they conceived to be as old as Edward 
the Confessor. They were speaking, not out of theory, but 
out of practice and experience, for the maintenance of 
privileges which they conceived themselves time out of 
mind to have possessed. They were insisting that govern¬ 
ment should be adjusted to their actual lives, accommodated 
to their actual experience. And so Magna Carta speaks 
of no new rights. It grants nothing. It merely safe- 


8 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


guards. It provides methods and reforms abuses. It does 
not say what men shall have by way of freedom and privi¬ 
lege; it speaks only of what restraints the king’s govern¬ 
ment shall observe in seeking to abridge such freedom 
and privilege as Englishmen already of right enjoy. 
Let the famous 29th clause serve as an example. (It says 
nothing of the grant to any man of life, liberty, or property: 
it takes it for granted that every man has the right to these, 
as our own Declaration of Independence does, and enacts 
simply that “no man shall be deprived of life, liberty, or 
property, save by the judgment of his peers and the law 
of the land.” It is seeking to regulate the exercise of 
power, to adjust its operation, as safely and conveniently 
as may be, to that general interest which is the sum of 
the interest of every man; that he may be dealt with, not 
as the king arbitrarily pleases, but as his own peers, men 
of his own kind and interest, deem just, and as laws which 
deal equally with all men impartially direct. 

Look into any constitutional document of the English- 
speaking race and you shall find the same spirit, the same 
way of action: its aim is always an arrangement, as if of 
business: no abstract setting forth of liberties, no pretense 
of grants of privilege or political rights, but always a formu¬ 
lation of limits and of methods, a regulation of the way 
governments shall act and individuals be dealt with. 
Take the first eight amendments to the Constitution of the 
United States as an example, and see in them the charter 
of liberties which the States insisted upon having added 
to the Constitution at the outset. The whole spirit 
and manner of the thing is exhibited in their businesslike 
phrases. “The right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 


WHAT IS CONSTITUTIONAL GOVERNMENT? 


9 


searches and seizures shall not be violated, and no warrants 
shall be issued but upon probable cause, supported by oath 
or affirmation, and particularly describing the places to be 
searched, and the persons or things to be seized,” is the 
quiet language of the Fourth Amendment, denying to the 
government only unreasonable powers arbitrarily exer¬ 
cised. The words of the Fifth Article are equally business¬ 
like and sensible: “No person shall be held to answer for 
a capital, or otherwise infamous crime, unless on the pre¬ 
sentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, when 
in actual service in time of war or public danger; nor shall 
any person be subject for the same offense to be twice 
put in jeopardy of life or limb; nor shall be compelled in 
any criminal case to be a witness against himself; nor be 
deprived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public use, 
without just compensation.” Every clause bears the same 
practical character. Such provisions make of the Con¬ 
stitution an agreement as feasible and as acceptable as 
Magna Carta. It is a body of distinct stipulations as to 
where the lines of privilege shall run, where individual 
rights shall begin and governmental rights stop, in the 
more critical dealings between rulers and citizens. 

And the whole of constitutional history is similarly 
concerned with definition, with method, with machinery, 
as if principles were taken for granted and no one doubted 
that men should be free, their interests righteously adjusted 
to the powers of government, securely safeguarded against 
governments’ possible encroachments. The question of 
machinery, of ways and means, is manifestly of capital 
importance in a constitutional system. Such a system 


10 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

is based upon a definite understanding between governors 
and governed. No constitutional government has been 
without explicit written statements of the terms of the 
understanding such as is contained in Magna Carta. But 
it is important that these terms should be definite and 
unmistakable, not merely in order that disputes concern¬ 
ing its meaning and content may be avoided, but also in 
order that it may be clear what steps should be taken to 
carry it out; and the means provided for maintaining it 
in practice are hardly less indispensable than its own 
definitions. That is the reason why English constitutional 
history has centred about the development of parliament. 

Not until after the Revolution of 1688 was parliament 
looked upon as modern Englishmen look upon it, as chiefly 
interesting because of the laws it could make. Not until 
the eighteenth century had passed its middle term did it 
come to be what it is now, the maker and unmaker of 
ministries, the maker and unmaker of governments. For 
at least four of the six hundred years during which it has 
been an instrument of constitutional government it was 
looked upon merely as the “ grand assize,” the great ses¬ 
sion, of the nation, whose function was criticism and 
restraint, which came together to see that the terms upon 
which English life was understood to rest were being scrupu¬ 
lously respected by the king and his advisers. The thought 
grew vague enough at times; the nation once and again 
lost consciousness of what its parliament meant; the par¬ 
liament itself sometimes forgot for generations together 
what its trust and duty was; but every critical turn in 
affairs brought the whole impulse and conception sharply 
to light again, and the great tradition was never lost. 

We speak now always of ‘legislatures/ of ‘ l&w-making’ 


WHAT IS CONSTITUTIONAL GOVERNMENT? 


11 


assemblies, are very impatient of prolonged debates, and 
sneer at parliamentary bodies which cannot get their 
1 business ’ done. We join with laughing zest in Mr. 
Carlyle’s bitter gibe at “ talking shops,” at parliaments 
which spend their days in endless discussion rather than in 
diligent prosecution of what they came together to ‘do.’ 
And yet to hold such an attitude toward representative 
assemblies is utterly to forget their history and their first 
and capital purpose. They were meant to be talking shops. 
The name “ parliament ” is no accidental indication of their 
function. They were meant to be grand parleys with those 
who were conducting the country’s business: parleys con¬ 
cerning laws, concerning administrative acts, concerning 
policies and plans at home and abroad, in order that 
nothing which contravened the common understanding 
should be let pass without comment or stricture, in order 
that measures should be insisted on which the nation 
needed, and measures resisted which the nation did not 
need or might take harm from. Their purpose was watchful 
criticism, talk that should bring to light the whole intention 
of the government and apprise those who conducted it 
of the real feeling and desire of the nation; and how well 
they performed that function many an uneasy monarch has 
testified, alike by word and act. 

It was as far as possible from the original purpose of 
representative assemblies that they should conduct govern¬ 
ment. Government was of course to be conducted by the 
immemorial executive agencies to which Englishmen had 
grown accustomed, and parliaments were to support those 
agencies and supply them with money, and to assent to such 
laws as might be necessary to strengthen the govern¬ 
ment or regulate the affairs of the country, public or 


12 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


private. Their function was common counsel; their 
standard of action the ancient understandings of a con¬ 
stitutional system, — a system based on understandings, 
written or implicit in the experiences and principles of 
English life. They were expected to give their assent 
where those understandings were served, and to withhold 
it where they were disregarded. They were to voice the 
conscience of the nation in the presence of government 
and the exercise of authority. 

To recall the history is to recall the fundamental con¬ 
ception of the whole process, and to understand our own 
institutions as they cannot be understood in any other 
way. It was only by a very slow and round-about devel¬ 
opment that representative assemblies — at any rate that 
the English representative assembly, which is the type of 
all the rest — came to possess or exercise the right to make 
laws. Many a generation went by before it was supposed 
that parliament had anything to do with the laws except 
to give its assent to them or withhold it when new enact¬ 
ments were submitted to it from the king. In the course 
of time it found only too often that changes in the law were 
submitted to it in vague general terms and then, after its 
assent had been given, were formulated and enforced in 
terms which gave them another scope and color; and 
such practices led the leaders of the Commons at last to 
insist that laws should be submitted to them in the full 
form and statement in which they were to be enforced. 
It was an easy step from that to the insistence that formu¬ 
lations which did not suit them should be changed, — an 
easy step to amendment; but it was a step they were long 
in taking, and even after they had taken it, they suffered 
the king’s officers to formulate the amendment, and often 


WHAT IS CONSTITUTIONAL GOVERNMENT? 13 

found themselves again cheated, their real purpose de¬ 
feated by the terms in which it was made. Even so, it 
was a long time before they undertook to draft ‘ bills’ or 
proposals of their own, and a longer time still before it 
became settled practice to have the exact wording of every 
law submitted first to the debate and choice of parliament. 
To this day the legislation of parliament in all important 
matters comes to it on the proposal of the ministers of the 
crown and is formulated by the law officers of the govern¬ 
ment. Modern English ministries are in effect merely 
committees of the House of Commons, made and unmade 
as parties shift and majorities change; but parliament is 
still in all its larger aspects the grand assize of the nation, 
assembled not to originate business, but to apprise the 
government of what the nation wishes. 

Our own legislatures were of the same character and 
origin. Their liberties and functions grew by similar pro¬ 
cesses, upon similar understandings, out of the precedents 
and practices of colonial laws and charters and the cir¬ 
cumstances of the age and place. There is a passage in 
Burke which interprets their growth and character with 
perfect historical insight, as bodies which had grown, almost 
insensibly, upon the model of parliament itself. He uttered 
it as part of his defense of American self-government against 
the encroachment of parliament, and no one writing in a 
cooler age can improve upon its analysis. 

It is plain that parliaments, that representative bodies, 
free to criticize not only but acting with independence, 
uttering the voice of those who are governed, and enjoying 
such authority as no king or president or officer of any 
kind may question or gainsay, constitute an indispensable 
part of the institutional make-up of a constitutional govern- 


14 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

ment. We sometimes attach a very artificial significance 
to the word ‘institution.’ Speaking in the terms of his¬ 
tory, and particularly of political history, an institution 
is merely an established practice, an habitual method of 
dealing with the circumstances of life or the business of 
government. There may be firmly established institutions 
of which the law knows nothing. In casting about for a 
satisfactory way in which to nominate candidates for the 
office of President of the United States, for instance, our 
party leaders devised the national nominating convention, 
and it has become one of our institutions, though neither 
the constitution nor any statute knows anything of it. 
And so the growth of constitutional government has been 
the growth of institutions, of practices, of methods of per¬ 
fecting the delicate business of maintaining an under¬ 
standing between those who conduct the government and 
those who submit to it. The object of constitutional 
government is to bring the active, planning will of each 
part of the government into accord with the prevailing 
popular thought and need, and thus make it an impartial 
instrument of symmetrical national development; and to 
give to the operation of the government thus shaped under 
the influence of opinion and adjusted to the general inter¬ 
est both stability and an incorruptible efficacy. Whatever 
institutions, whatever practices serve these ends, are neces¬ 
sary to such a system: those which do not, or which serve 
it imperfectly, should be dispensed with or bettered. 
And it may be said that the history of constitutional gov¬ 
ernment has been an experimental search for the best means 
by which to effect these nice adjustments. 

The modern development of the functions of representa¬ 
tive assemblies has been in many ways inconsistent with 


WHAT IS CONSTITUTIONAL GOVERNMENT? 15 

the real origins and purposes of the practices or institu¬ 
tions in which they had their rise and justification. We 
now regard them, not as bodies assembled to consult with 
the government in order to apprise it of the opinion of 
the nation with regard to what the government is planning 
or doing, not as bodies outside the government set to criti¬ 
cize, restrain, and guide it, but as themselves parts of the 
government, its originating, law-making parts. What used 
to be called the Government, we now speak of only as 
the ‘ Executive/ and regard as little more than an in¬ 
strumentality for carrying into effect the laws which our 
representative assemblies originate. Our laws abound in 
the most minute administrative details, prescribe the duties 
of executive officers and the method by which statutes are 
to be put into practice with the utmost particularity, and 
all the reins of government seem to have fallen to those 
who were once only its censors. It is, of course, a neces¬ 
sary inference from even the most superficial analysis of 
constitutional government that under it those who ad¬ 
minister the law and direct the policy of the nation in its 
field of action shall be strictly subject to the laws, must 
observe the prescribed methods and understandings of the 
system very precisely ; but it is by no means a necessary 
inference that they shall be in leading strings and shall be 
reduced to be the mere ministerial agents of a representative 
assembly; and the inconveniences and anomalies of this 
new practice and conception in the use of assemblies will, 
many of them, become manifest enough in our subsequent 
examination of our government in its practical operations. 

To inquire into such matters is to make intimate approach 
to the very essence of constitutional government; but we 
approach that essence still more intimately when we turn 


16 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

from the community, from the nation, and from the assem¬ 
bly which represents it, to the individual. No doubt a 
great deal of nonsense has been talked about the inalienable 
rights of the individual, and a great deal that was mere 
vague sentiment and pleasing speculation has been put 
forward as fundamental principle. The rights of man are 
easy to discourse of, may be very pleasingly magnified in 
the sentences of such constitutions as it used to satisfy the 
revolutionary ardor of French leaders to draw up and 
affect to put into operation; but they are infinitely hard 
to translate into practice. Such theories are never ‘law/ 
no matter what the name or the formal authority of the 
document in which they are embodied. Only that is 
‘law’ which can be executed, and the abstract rights of 
man are singularly difficult of execution. None the less, 
vague talk and ineffectual theory though there be, the 
individual is indisputably the original, the first fact of 
liberty. Nations are made up of individuals, and the 
dealings of government with individuals are the ultimate 
and perfect test of its constitutional character. A man 
is not free through representative assemblies, he is free in 
his own action, in his own dealings with the persons and 
powers about him, or he is not free at all. There is no 
such thing as corporate liberty. Liberty belongs to the 
individual, or it does not exist. 

And so the instrumentalities through which individuals 
are afforded protection against the injustice or the unwar¬ 
ranted exactions of government are central to the whole 
structure of a constitutional system. From the very outset 
in modern constitutional history until now it has invariably 
been recognized as one of the essentials of constitutional 
government that the individual should be provided with 


WHAT IS CONSTITUTIONAL GOVERNMENT? 17 

some tribunal to which he could resort with the confident 
expectation that he should find justice there, — not only 
justice as against other individuals who had disregarded 
his rights or sought to disregard them, but also justice 
against the government itself, a perfect protection against 
all violations of law. Constitutional government is par 
excellence a government of law. 

I am not repeating the famous sentence of the Massa¬ 
chusetts Bill of Rights, “to the end that this may be a 
government of laws and not of men.” There never was such 
a government. Constitute them how you will, governments 
are always governments of men, and no part of any govern¬ 
ment is better than the men to whom that part is intrusted. 
The gauge of excellence is not the law under which officers 
act, but the conscience and intelligence with which they 
apply it, if they apply it at all. And the courts do not escape 
the rule. So far as the individual is concerned, a constitu¬ 
tional government is as good as its courts; no better, no 
worse. Its laws are only its professions. It keeps its prom¬ 
ises, or does not keep them, in its courts. For the indi¬ 
vidual, therefore, who stands at the centre of every definition 
of liberty, the struggle for constitutional government is a 
struggle for good laws, indeed, but also for intelligent, inde¬ 
pendent, and impartial courts. Not only is it necessary 
that the people should be spoken for in the conduct of the 
government by an assembly truly representative of them; 
that only such laws should be made or should be suffered 
to remain in force as effect the best regulation of the 
national life; and that the administration should be sub¬ 
ject to the laws. It is also necessary that there should 
be a judiciary endowed with substantial and independent 
powers and secure against all corrupting or perverting 


18 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

influences; secure, also, against the arbitrary authority of 
the administrative heads of the government. 

Indeed there is a sense in which it may be said that the 
whole efficacy and reality of constitutional government 
resides in its courts. [Our definition of liberty is that it 
is the best practicable adjustment between the powers of 
the government and the privileges of the individual; and 
liberty is the object of constitutional government. The 
ultimate and characteristic object of a constitutional 
system is not to effect the best possible adjustment 
between the government and the community, but the best 
possible adjustment between the government and the 
individual; for liberty is individual, not communal; 
Throughout English history, throughout all the processes 
which have given us constitutional government as the 
modern world knows it, those who strove to restrain or to 
moralize government have perceived that the whole reality 
of the change must find its expression in the opportunity 
of the individual to resort for the vindication of his rights 
to a tribunal which was neither government nor community, 
but an umpire and judge between them, or rather between 
government and the man himself, claiming rights to which 
he was entitled under the general understanding. 

Nothing in connection with the development of constitu¬ 
tional government is more remarkable, nothing commends 
itself more to the understanding of those who perceive the 
real bases of human dignity and capacity, than the way in 
which it has exalted the individual, and not only exalted 
him, but at the same time thrown him upon his own re¬ 
sources, as if it honored him enough to release him from 
leading strings and trust him to see and seek his own rights. 
The theory of English and American law is that no man 


WHAT IS CONSTITUTIONAL GOVERNMENT? 19 


must look to have the government take care of him, but 
that every man must take care of himself, the government 
providing the means and making them as excellent as may 
be, in order that there may be no breach of the peace and 
that everything may be done, so far as possible, with 
decency and in order, but never itself taking the initia¬ 
tive, never of its own motion intervening, only standing 
ready to help when called on. Such an attitude pre¬ 
supposes both intelligence and independence of spirit on 
the part of the individual: such a system elicits intelli¬ 
gence and creates independence of spirit. The individual 
must seek his court and must know his remedy, and under 
such a compulsion he will undertake to do both. The 
stimulation of such requirements is all that he needs, in 
addition to his own impulses and desires, to give him the 
attitude and habit of a free man; and the government set 
over such men must look to see that it have authority for 
every act it ventures upon. 

It further emphasizes this view and purpose of our law, 
that no peculiar dignity or sanctity attaches amongst us 
to any officer of government. The theory of our law is 
that an officer is an officer only so long as he acts within his 
powers; that when he transcends his authority he ceases 
to be an officer and is only a private individual, subject to 
be sued and punished for his offense. An officer who makes 
a false arrest without warrant is liable to civil suit for 
damages and to criminal prosecution for assault. He has 
stepped out of the ranks of public officers, represents 
nobody but himself, and is merely committing a private 
wrong. That is the explicit principle of American law not 
only, but of English law also: the American practice is 
derived from the English. It is a logical, matter-of-course 


20 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

inference of the constitutional system: representatives 
of government have no authority except such as they derive 
from the law, from the regulations agreed on between the 
government and those who are to be governed. Whoever 
disregards the limits of the law transgresses the very funda¬ 
mental presumptions of the system and becomes merely a 
lawbreaker, enjoying no privilege or exemption. Such a 
principle in effect repeats the understanding of Runny- 
mede: ‘Here is this charter; sign it and observe it, and 
you are our king; refuse to sign it, violate or ignore it, 
and you are not our king, but a man without kingly au¬ 
thority who has done us wrong, and we are your enemies 
and shall seek redress.’ It is the same understanding 
from the king at the top to the constable at the bottom. 

(It remains only to note what may be called the atmos¬ 
phere of constitutional government. It is the atmosphere 
of opinion. Opinion is, of course, the atmosphere of every 
government, whatever its forms and powers: governments 
are contrasted with one another only by the degree and 
manner in which opinion affects them. There is nowhere 
any such thing as a literally absolute government. The 
veriest despot is a creature of circumstances, and the most 
important circumstance of all, whether he is conscious of 
adjusting himself to it or not, is the disposition of those 
about him to obey him or to defy him. Certain things are 
definitely expected of him: there are certain privileges 
which he must always respect, certain expectations of 
caste and of rank which he must always punctiliously 
regard. Above all there is the great body of habit, the 
habitual frame of the life in which his own people have been 
formed, which he would throw himself against in vain. 
The boundaries of his authority lie where he finds the limits 


WHAT IS CONSTITUTIONAL GOVERNMENT? 21 


of his subjects’ willingness or ability to obey him. They 
cannot obey him if he seek to force upon them rules too 
strange to their habit: they will not know how, and their 
spirits will revolt. They will not obey him if he outrage 
them by too gross a violation of the understandings which 
they have come to regard as sacred and of the very essence 
of their life and happiness.) The difference between a con¬ 
stitutional system and an unconstitutional is that in a 
constitutional system the requirements of opinion are 
clearly formulated and understood, while in an unconstitu¬ 
tional they are vague and conjectural. The unconstitu¬ 
tional ruler has to guess where his subjects will call a halt 
upon him, and experiment at the hazard of his throne and 
head; the constitutional ruler definitely knows the limits 
which he must not transgress and is safe in his authority so 
long as he does not overstep them. 

But there is this radical difference between the opinion 
which 'limits the power of an unconstitutional ruler and 
that which limits the powers of a constitutional govern¬ 
ment: that the one is unorganized opinion, the other 
organized; the one hardly more than an impatient stir at 
any disturbance of tradition or of habit, the other a quick 
concert of thought, uttered by those who know how to 
guide both counsel and action. Indeed, there has seldom 
been in the case of a despotic government anything that 
really corresponded with what in constitutional govern¬ 
ment is known as public opinion. The wit who described 
the government of France as despotism tempered by epi¬ 
gram was really formulating one of the approaches to 
constitutional government. When opinion spoken in the 
salon begins to be a definite organ of criticism, when criti¬ 
cism has become concerted and powerful enough and 


22 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


sufficiently mixed with the passion of action to serve from 
time to time as a modifying, guiding, and controlling force, 
the development of constitutional government has begun. 

It is therefore peculiarly true of constitutional govern¬ 
ment that its atmosphere is opinion, the air from which it 
takes its breath and vigor. The underlying understandings of 
a constitutional system are modified from age to age by 
changes of life and circumstance and corresponding altera¬ 
tions of opinion. It does not remain fixed in any unchang¬ 
ing form, but grows with the growth and is altered with 
the change of the nation’s needs and purposes. The 
constitution of England, the original and typical constitu¬ 
tional government of the world, is unwritten except for 
its statement of individual right and privilege in Magna 
Carta, in the Bill of Rights, and in the Petition of Right; 
is, in other words, only a body of very definite opinion, 
except for occasional definitions of statute here and there. 
Its substance is the thought and habit of the nation, its 
conscious expectations and preferences; and around even 
a written constitution there grows up a body of practices 
which have no formal recognition or sanction in the written 
law, which even modify the written stipulations of the sys¬ 
tem in many subtle ways and become the instrument of 
opinion in effecting a slow transformation. If it were not 
so, the written document would become too stiff a garment 
for the living thing. 

It is in this sense that institutions are the creatures of 
opinion. Their breath and vigor goes out of them when 
they cease to be sustained by the conscious or habitual 
preference of the people whose practice has created them; 
and new institutions take their place when once that prac¬ 
tice is altered. That is what gives dignity to citizenship 


WHAT IS CONSTITUTIONAL GOVERNMENT? 23 


among a free people. Every man’s thought is part of the 
vital substance of its institutions. With the change of 
his thought, institutions themselves may change. That 
is what constitutes citizenship so responsible and solemn a 
thing. Every man in a free country is, as it were, put upon 
his honor to be the kind of man such a polity supposes its 
citizens to be: a man with his thought upon the general 
welfare, his interest consciously linked with the interests 
of his fellow-citizens, his sense of duty broadened to the 
scope of public affairs. Every generation in a free state 
realizes that the perpetuation of its institutions depends 
upon the thought and disposition of the generations which 
are to follow, and busies itself to hand the impulse and the 
conception on by careful processes of education, stamping 
its thought upon young men, seeking to make its own frame 
of mind permanent. Old phrases spring to new significance 
as one’s thought clears in such matters. “ Eternal vigi¬ 
lance is the price of liberty.” The threadbare phrase seems 
new stuff when we wear it on our understandings. The 
vigilance of intelligently directed opinion is indeed the very 
soil of liberty and of all the enlightened institutions meant 
to sustain it. And that will always be the freest country 
in which enlightened opinion abounds, in which to plant 
the practices of government. It is of the essence of a con¬ 
stitutional system that its people should think straight, 
maintain a consistent purpose, look before and after, and 
make their lives the image of their thoughts. 

We may summarize our view of constitutional govern¬ 
ment by saying that its ultimate and essential objects are: 

1st. To bring the active and planning will of each part 
of the government into accord with the prevailing popular 
thought and need, in order that government may be the 


24 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


impartial instrument of a symmetrical national develop¬ 
ment; 

2d. To give to the law thus formulated under the in¬ 
fluence of opinion and adjusted to the general interest both 
stability and an incorruptible efficacy; 

3d. To put into the hands of every individual, without 
favor or discrimination, the means of enforcing the under¬ 
standings of the law alike with regard to himself and with 
regard to the operations of government, the means of chal¬ 
lenging every illegal act that touches him. 

And that, accordingly, the essential elements and insti¬ 
tutions of a constitutional system are: — 

1st. A more or less complete and particular formulation 
of the rights of individual liberty, — that is, the rights of 
the individual against the community or its government, — 
such as is contained in Magna Carta and in the Bills of 
Rights attached to our constitutions; 

2d. An assembly, representative of the community or 
of the people, and not of the government: a body set to 
criticize, restrain, and control the government; 

3d. A government or executive subject to the laws, and 

4th. A judiciary with substantial and independent 
powers, secure against all corrupting or perverting influ¬ 
ences; secure, also, against the arbitrary authority of the 
government itself. 


II 


THE PLACE OF THE UNITED STATES IN CONSTITUTIONAL 
DEVELOPMENT 

It will greatly enrich our conception of what a con¬ 
stitutional government is to look a little farther into its 
history. The government of the United States came into 
existence at a very interesting turning-point in that his¬ 
tory, and will lie very much more open to our analysis 
if we pause before we go farther to examine the circum¬ 
stances of its origin. Historical excursions are sometimes 
tedious enough, but the matter we handle cannot be made 
vital until it is given its true historical setting. 

Evidently, if a constitutional government is a govern¬ 
ment conducted on the basis of a definite understanding 
between those who administer it and those who obey it, 
there can be no constitutional government unless there 
be a community to sustain and develop it, — unless the 
nation, whose instrument it is, is conscious of common 
interests and can form common purposes. A people not 
conscious of any unity, inorganic, unthoughtful, without 
concert of action, can manifestly neither form nor sustain 
a constitutional system. The lethargy of an unawakened 
consciousness is upon them, the helplessness of unformed 
purpose. They can form no common judgment; they 
can conceive no common end; they can contrive no com¬ 
mon measures. Nothing but a community can have a 

25 


- 


26 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

constitutional form of government, and if a nation has 
not become a community, it cannot have that sort of polity. 
It is necessary at the very outset of our analysis, there¬ 
fore, that we should form a very definite conception of 
what a community is, and should ask ourselves very 
frankly whether the United States can be regarded as a 
community or not. Only in that way can we determine 
the place of the United States in constitutional develop¬ 
ment ; and only practical historical tests will answer 
either the one question or the other. 

The word ‘ community’ is often upon our lips, but 
seldom receives any clear definition in our thoughts. If 
we should examine our implicit assumptions with regard 
to it, I suppose that we should agree in saying that no 
body of people could constitute a community in any true 
or practical sense who did not have a distinct consciousness 
of common ties and interests, a common manner and 
standard of life and conduct, and a practised habit of 
union and concerted action in whatever affected it as a 
whole. It is in this understanding of the term that we 
speak when we say that only a community can have a 
constitutional government. No body of people which is 
not clearly conscious of common interests and of common 
standards of life and happiness can come to any satisfactory 
agreement with its government, and no people which has 
not a habit of union and concerted action in regard to its 
affairs could secure itself against the breach of such an 
agreement if it existed. A people must have the impulse 
and must find the means to express itself in institutions 
if it is to have a constitutional system. 

I should be at a loss to define what I mean by a common 
political consciousness, but fortunately it does not need 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 27 

definition. What it is is part of the imaginative concep¬ 
tion of every one whose mind has traveled at all in the 
realms of history and of social experience. With every 
one of us it is an idea which is as definite as it is subtle 
and complex. We know that that body of persons is 
not a community along whose blood the same events do 
not send the same thrill, upon whose purposes and upon 
whose consciousness the same events do not make the 
same impression, and who are not capable, at every turn 
in their affairs, of forming resolutions and executing meas¬ 
ures which will meet the exigency. You remember those 
fine sentences of De Tocqueville’s with regard to the forma¬ 
tion of our own government, in which he speaks with 
admiring wonder of the calm and self-reliant way in which 
the people of the colonies turned a critical eye upon them¬ 
selves, detected, as if they looked not upon their own 
institutions but upon those of others, the serious defects 
of their political system, and remedied them “ without 
having drawn a tear or a drop of blood from mankind. ,, 
In proportion as they had a common consciousness with 
regard to their affairs, they were capable of handling them 
and of setting up a government which should last. The 
historical circumstances which explain the capacity of 
the colonists explain also the character of the government 
of the United States and make plain its place in constitu¬ 
tional development. How was the United States made 
a community? How far and in what matters was its 
consciousness as a community developed ? How have 
its institutions responded to that development, and how 
do they now stand related to it ? These are the questions 
whose answers may be expected to give us light upon our 
whole inquiry. 


28 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


Looked at from the point of view of our present study, 
government may be said to have passed, roughly speaking, 
through four stages and forms of development: a first 
stage in which the government was master, the people 
veritable subjects; a second in which the government, 
ceasing to be master by virtue of sheer force and unques¬ 
tioned authority, remained master by virtue of its insight 
and sagacity, its readiness and fitness to lead; a third in 
which both sorts of mastery failed it and it found itself 
face to face with leaders of the people who were bent upon 
controlling it, a period of deep agitation and full of the 
signs of change; and a fourth in which the leaders of the 
people themselves became the government, and the devel¬ 
opment was complete. 

Government may be said to have been master both in 
the early Germanic feudal nation which occupied the 
European field after the break-up of the Roman Empire 
and in the developed feudal nation in which a monarch 
like Louis XIV could say with almost literal truth, L’etat 
c’est moi; and also in the nations which have been sub¬ 
jugated by some military race or class, conquering them from 
without and retaining their hold upon them by organized 
force, as in China and Russia. Such governments represent 
always a stage of social development: the stage at which 
the people governed are conscious of no community of 
interest, no possible concert of action amongst them; do 
not feel themselves a single body or stir with any common 
purpose; have not formed the idea of an interest of their 
own opposed to the interest of the government, or, if they 
have begun vaguely to form it, know no means of making 
their separate wish known or effective: a people dumb 
and without knowledge of speech in such matters. A 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 29 

people may or may not linger at this stage. The nation 
which is most likely to linger until it stagnates is the caste 
nation, caught in a crust of custom which it is almost 
impossible to break or even to alter, unless some irresistible 
force from without break and destroy it, as the force of 
the western nations has so ruthlessly broken the ancient 
forms of Chinese life. The military nation is quite sure 
to change very rapidly: it is too full of stir and force to 
retain its first forms or stand still at one stage of develop¬ 
ment ; and the monarch of the modern state to which the 
feudal state gave birth is more apt than another to attempt 
progress and development, as the kings of modern Europe 
did. The population which is ruled by a limited class 
who are its conquerors is apt, if we may judge by the case 
of Russia, to stand still until the polity rots. 

The stagnation of peoples is very hard for us to think 
of in our modern western world, but it has none the less 
been the rule, not the exception, as Mr. Bagehot pointed 
out in that illuminating book, “ Physics and Politics.” 
If we reckon by numerical majorities, the rule has been 
stagnation; much the greater part of the population of 
the world has been caught fast in a crust of custom or in 
an iron net of military rule, and has known no political 
progress. Even those peoples who have struggled toward 
the light and sought emancipation from the trammels of 
too much government have moved with painful slowness 
toward their goal, so long as there were none of those 
quick means of concerting thought and action which have 
been supplied us in the telegraph, the railway, and 
the cheapened printing press. Without these instrumen¬ 
talities it is to be doubted whether we could ever have 
spread a single free state over the spaces of a great con- 


30 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

tinent, as we have done in America, where there were 
already people accustomed to do as they pleased and to 
act upon their own initiative. Concerted action does not 
come by impulse but by practice, by the slow schooling 
of experience, chiefly by the schooling of repeated failures. 
A common purpose can be formed only by the slow pro¬ 
cesses of common counsel, until our own day a thing infi¬ 
nitely tedious and difficult. Many a long age stretches 
between the moment when a nation begins to awaken to 
the consciousness that it has common ties and a common 
interest as against a too masterful and selfish government 
and the triumphant moment when it sees its own chosen 
leaders in actual control of its law and policy. The first 
stirrings of that consciousness change the face of affairs 
and usher in the second stage of development of which I 
have spoken; and from it governments that have sagacity 
enough to respond take their golden opportunity to lead. 

It is then that government finds itself checked by the 
beginnings of independent action on the part of the nation, 
irregular and imperfectly organized it may be, but definite 
and significant enough to demand the consideration and 
often to modify the course of those who rule, lest govern¬ 
ment should fail of being obeyed and should jeopard civil 
order, if not its own authority and security. It was so 
in England in the time of Elizabeth. Parliaments had 
not yet obtained any place of command. They were 
consulted when the monarch pleased, and not oftener. 
Their counsels restrained, but did not govern. The will 
of the monarch was sometimes stronger than the under¬ 
standings of the constitution. Opinion had not come to 
its full stature; authority still loomed large and impera¬ 
tive in every ordinary matter of state. But England was 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 31 


astir as she never had been before. In the old days she 
had been at the back of Europe; now she was at her front. 
The doors of the East had been closed by the conquests 
of the Turk; the barrier of his intolerant power was thrown 
across the old routes of trade out of Europe into the great 
Orient, and Europe had turned her face about to seek new 
outlets for her commerce: down the western coasts of 
Africa and so around the southern capes into the East 
again, and across the vast Atlantic to the new lands slowly 
rising to view over sea, — whether in fact a new world or 
only the old coasts of the East approached from another 
side mariners or geographers had not yet quite made up 
their minds. Columbus had turned his adventurous 
prows straight toward the heart of the seemingly limitless 
ocean whose mysteries no man before him had dared look 
into; and England herself, lying at the very gates of that 
sea, had been quick to send her own sailors in his wake. 
Englishmen of every rank and fortune began to turn to 
the sea for adventure and profit, and the sixteenth century 
saw the little kingdom wake to influences and ambitions 
she had never felt before. It was a mettlesome race 
Elizabeth found herself set to govern. 

Whether she was conscious that they were not easy to 
rule and were likely to have minds of their own in matters 
of government it is not necessary to ask, because she was 
of the same mettle and spirit as they, a truly representa¬ 
tive Englishman, inclined to lead her people in their own 
temper and quick to see their interests as they saw them. 
Mr. John Richard Green has said that in her dealings with 
foreign governments Elizabeth was one of the most accom¬ 
plished liars of her day, but that she always dealt candidly 
and truthfully with her own subjects. It was not so much 


32 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

the circumspection of a wise ruler who wishes to retain 
the confidence of those upon whose obedience he counts 
for all the vigor of his policy as the instinctive sympathy 
and quick understanding that naturally exists between 
persons of the same purpose and breeding. England came 
to her full consciousness as a nation in that great day of 
enterprise and adventure, and Elizabeth was England’s 
suitable embodiment. Her mastery was the mastery of 
natural leadership. Her instinctive knowledge of what 
was demanded of her shows in nothing better than in her 
treatment of the great seamen who explored the long coasts 
of the new world and lifted treasure from every Spanish 
fleet they could find. She gave them their commissions 
and asked no inconvenient questions. So long as they 
kept troth with her, came to her at her command, executed 
her purposes when she had need of them, paid reasonable 
tribute into her treasury, and made all rival seamen respect 
her power, she freely gave them leave as they wished. 
Never in any other age had English energy been so quick¬ 
ened and released: a great ruler made great subjects. 

There were dark sides enough to the picture. There 
were phases of English life to which there is not here 
time to turn in which the royal authority showed sinister 
and without true insight into either the rights or the inter¬ 
ests of the kingdom, — monopolies, illegal exactions, 
private favors, a thousand irregularities - of power, — but 
that was nothing new; while it was a new thing to have 
a monarch who, at any rate in all large matters, under¬ 
stood her people and lent her sagacity to the task of lead¬ 
ing and stimulating them. In the nick of time, when 
they most needed a leader, she gave them one in her own 
person, — a foolish woman but a great statesman. 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 33 


We have another example of the same thing in a very 
different age in the leadership of Frederick the Great of 
Prussia. The Prussia of the middle of the eighteenth 
century was in almost no respect like the England of the 
middle of the sixteenth. Frederick, when he came to lead 
and develop Prussia, had but just put her together out 
of pieces swept under his single rule by the processes of 
war. Neither is there any close similarity between the 
characters of Frederick and Elizabeth. They resembled 
one another in character no more than any strong and 
masterful man who was born a statesman resembles any 
masterful woman born a statesman. But Frederick did 
for Prussia more than Elizabeth did for England. He 
first made it a compact and potentially powerful kingdom, 
and then himself called it into consciousness. Elizabeth 
gave expression in her own person and gifts to a new nation 
that had been born and would have been born whether 
she had lived to rule it or not; Frederick called his king¬ 
dom into life and gave it the leadership of an awakening; 
and he did so on the eve of the modern time, as peoples 
were everywhere beginning to awake, and so affords us an 
admirable example, as Elizabeth does, of what a govern¬ 
ment may do by way of leadership, in anticipation of the 
day when the people will find sympathetic leaders for 
themselves if their rulers fail to supply them. 

Frederick probably did more for Prussia than she could 
have done for herself under leaders of her own choosing. 
He saw her and understood her as a whole. She was in 
a sense of his own making. He wished her to have internal 
development rather because he wished her to be strong 
among the states of Europe than because he wished to 
see her strength and prosperity increase as a statesman 


34 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

would in times when he was sure of peace; desired her 
economic enlargement chiefly because he wished his treas¬ 
ury to be full, his kingdom’s resources sufficient for any 
long-drawn contest of arms that might be necessary with 
the rivals about him; and it must be said that he treated 
his subjects like servants rather than like citizens of a 
great state. But under all his purpose of aggrandizement 
and of international supremacy there lay a real sympathy 
with his people, a real insight into their interests and 
necessities, a real capacity to interpret and guide them. 
He was a leader as well as a master, and his rule gave 
Prussia such prestige as England had had in the times of 
the great Elizabeth. He led a new nation out on to the 
stage of Europe and made it ready for at any rate the 
initial stages of self-government, by giving it the self- 
consciousness and regard for its own interests which come 
of enterprise. A living people needs not a master but a 
leader. 

Leaders like Frederick and Elizabeth are, of course, 
self-constituted, and the great statesmen whom such 
rulers draw into their counsels are, of course, of their own, 
not of the nation’s, choosing. The nation is supplied 
with leaders, does not find them. It is too early for it 
to find them; it has not learned the way. Such a form 
and stage of government, the second on our list, represents 
a stage of political development, as the first of which I 
spoke represents a stage of social development. When a 
government is master and the people its unquestioned 
subjects, society is asleep, is unformed, inorganic, without 
self-consciousness, and without knowledge of its own inter¬ 
ests and power. What is lacking is the birth of a national 
consciousness and self-knowledge. When the second stage 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 35 

comes the nation has become aware of itself, aware of the 
drift and significance of its affairs, aware in some degree 
of its role and ambition among the nations; but it has 
not yet learned to choose its own leaders. It has had the 
social development necessary to bring it to the threshold 
of fully developed constitutional arrangements, but not 
the political development. It has not yet learned how to 
express itself in men thrust forward out of its own ranks 
or how to form such common resolutions and contrive 
such common counsels as would give leaders of its own 
choice a definite program of action, even if it could 
choose them. Of course the England of the time of Eliza¬ 
beth had already had a political development such as 
Prussia knew nothing of in Frederick’s day. Her parlia¬ 
ment lay ready to her hand, a true representative Assembly, 
to be turned to any use of common counsel or concerted 
action she might wish; while Prussia had nothing but her 
king and a dependent bureaucracy which he had created. 
In England the full machinery of constitutional govern¬ 
ment as it were lay dormant, not put to its final uses because 
Elizabeth saved her people the trouble and by her own 
leadership postponed the final developments of constitu¬ 
tional government until the weak Stuarts who followed 
her should make the authority to which she had given such 
dignity and prestige at last ridiculous and intolerable. 

Nations will pass from such a stage of political develop¬ 
ment by steady transition, change by change, into those 
arrangements whereby the freely chosen leaders of the 
people themselves at last assume control of the govern¬ 
ment, only if, while their hereditary rulers thus by natural 
genius lead them, a serviceable machinery of constitutional 
action exist or be formed by means of which the transition 


36 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

can be effected. This was the case in England, but not 
in Prussia. In England there were both parliament and 
a self-governing country gentry habituated to affairs. In 
Prussia there was nothing but a dependent bureaucracy 
neither derived from the people nor capable of inde¬ 
pendent initiative in their interest. 

And yet, whether there be the requisite machinery at 
hand or not, an awakened modern nation cannot long stand 
still at the stage where its affairs are managed without its 
direct institutional participation and assent. Things can¬ 
not long stand still where a whole arrangement depends 
upon the temper and insight of rulers whose authority is 
independent of the people’s choice, or upon an international 
situation and the social and economic condition of the 
country. National conditions are not often for long so 
simple or so comprehensible that a government not derived 
from the people can retain the sympathetic comprehension 
necessary to leadership. Moreover, the times which im¬ 
mediately followed the exceptional reigns of Frederick 
and Elizabeth were times when deep common convictions 
began to stir amidst all ranks and kinds of men; the con¬ 
victions of the great Protestant Reformation and of the 
fateful French Revolution, the two great epochs when plain 
men, who had hitherto taken little heed of affairs either 
in church or state, were aroused to know themselves and 
their rights, alike of conscience and of political recognition. 
Such awakenings of the minds and hearts of whole peoples 
produced leaders as of course. Great passions* when they 
run through a whole population, inevitably find a great 
spokesman. A people cannot remain dumb which is 
moved by profound impulses of conviction; and when 
spokesmen and leaders are found, effective concert of action 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 37 

seems to follow as naturally. Men spring together for 
common action under a common impulse which has taken 
hold upon their very natures, and governments presently 
find that they have those to reckon with who know not 
only what they want, but also the most effective means 
of making governments uncomfortable until they get it. 
Governments find themselves, in short, in the presence of 
Agitation , of systematic movements of opinion which do 
not merely flare up in spasmodic flame and then die down 
again, but burn with an accumulating ardor which can be 
checked and extinguished only by removing the grievances 
and abolishing the unacceptable institutions which are its 
fuel. Casual discontent can be allayed, but agitation fixed 
upon conviction cannot be. To fight it is merely to aug¬ 
ment its force. It burns irrepressibly in every public 
assembly; quiet it there, and it gathers head at street 
corners; drive it thence, and it smoulders in private dwell¬ 
ings, in social gatherings, in every covert of talk, only to 
break forth more violently than ever because denied vent 
and air. It must be reckoned with, and to reckon with it 
is to set up a new understanding between governors and 
governed, to consent to new practices which are new insti¬ 
tutions, to enter the fourth stage, which leads to the full 
development of constitutional rule. 

The third stage of the matter, the stage of agitation, has 
often been a long one and a sad one. Governments have 
been very resourceful in parrying agitation, in diverting 
it, in seeming to yield to it and then cheating it of its 
objects, in tiring it out or evading it; and where men of 
conviction lack any permanent instrument, like the Eng¬ 
lish parliament, upon which to centre their efforts, in which 
to find some unquestionable legal forum where to bring the 


38 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

pressure of their purposes constantly to bear on the gov¬ 
ernment, agitation may often fail entirely for generations 
together, its flame smothered or scattered from age to age. 
But the end, whether it come soon or late, is quite certain 
to be always the same. In one nation in one form, in 
another in another, but wherever conviction is awakened 
and serious purpose results from it, this at last happens: 
that the people’s leaders will themselves take control of 
the government as they have done in England, in Switzer¬ 
land, in America, in France, in Scandinavia, and in Italy, 
and as they will yet do in every other country whose polity 
fulfils the promise of the modern time. 

We are so accustomed to agitation, to absolutely free, 
outspoken argument for change, to an unrestrained criti¬ 
cism of men and measures carried almost to the point of 
licence, that to us it seems a normal, harmless part of the 
familiar processes of popular government. We have learned 
that it is pent-up feelings that are dangerous, whispered 
purposes that are revolutionary, covert follies that warp 
and poison the mind; that the wisest thing to do with a 
fool is to encourage him to hire a hall and discourse to his 
fellow citizens. Nothing chills nonsense like exposure to 
the air; nothing dispels folly like its publication; nothing 
so eases the machine as the safety valve. Agitation is 
certainly of the essence of a constitutional system, but 
those who exercise authority under a non-constitutional 
system fear its impact with a constant dread and try by 
every possible means to check and kill it, partly no doubt 
because they know that agitation is dangerous to arrange¬ 
ments which are unreasonable, and non-constitutional rule 
is highly unreasonable in countries whose people can express 
such common thoughts and contrive such concert of action 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 39 

as make agitation formidable. But there is always another 
reason why rulers so circumstanced should instinctively 
fear agitation. Agitation is unquestionably very danger¬ 
ous in countries where there are no institutions — no par¬ 
liaments, councils, occasional assemblies even — in which 
opinion may legitimately and with the sanction of law 
transmute itself into action. Speech is not the only vent 
opinion needs; it needs also the satisfactions of action. 

And action is very sobering to opinion. It is one thing 
to advocate reforms; it is quite another to formulate them. 
Many an ardent and burdensome reformer would be silenced 
and put to better thinking if he were obliged to express his 
reform in the exact words of a workable statute; and many 
a statute which amateurs may think eminently workable 
turns out impossible of execution. One of the things 
which is most instructive to the practical student of our 
own government is the tendency of our legislatures, both 
state and federal, to enact impracticable laws. Our legis¬ 
latures do not have to put their own enactments into 
execution. The chairmen of their committees may often 
be as absolute tyros in the actual business of government 
as the members of reform clubs whom they have contemptu¬ 
ously dubbed theorists; and their own theories of what 
ought to be done do not cease to be theories because ex¬ 
pressed in documents introduced by an enacting clause. 
They sometimes escape the blame attaching to the failure 
of the laws they frame by adroitly putting it off on the 
executive officers of the government, representing them as 
not in sympathy with the enactment and disinclined to 
give it a full or honest trial in practice; but many a statute 
is still-born, and agitation which results in still-births is 
harmless. The agitators have had their way, and nothing 


40 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


has happened. Action has released the pent-up energy, 
and no harm has been done. But under non-constitutional 
forms of government no vent of action is supplied, and a 
sort of fury of helplessness may ensue whose mad issue may 
be the very destruction of government itself. 

When the fourth and final stage of constitutional develop¬ 
ment is reached, when a people has gained so definite a 
consciousness of its own interests and of its own political 
force, has grown so accustomed to forming its own opinions 
and following its own leaders that it becomes natural and, 
indeed, inevitable, that its leaders should themselves take 
charge of the government and direct it, one or other of two 
forms of government may result: the parliamentary Eng¬ 
lish form or the American form, which Mr. Bagehot has, 
not very happily, perhaps, called the “presidential.” 
Under the parliamentary form of government the people’s 
recognized leaders for the time being, that is, the leaders 
of the political party which for the time commands a 
majority in the popular house of parliament, are both 
heads of the executive and guides of the legislature. They 
both conduct government and suggest legislation. All the 
chief measures of a parliamentary session originate with 
them, and they are under the sobering necessity of putting 
into successful execution the laws they propose. Under 
our own system the people as a whole consciously take part 
in the choice of but one man, the President, and he is not 
expected to lead Congress, but only to assent to or dissent 
from the laws it seeks to enact and to put those which re¬ 
ceive his signature or are passed over his veto into execu¬ 
tion; while Congress is guided by men whom the nation 
may or may not have regarded as its leaders and who are 
preferred to places of leadership in the House and Senate 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 41 

by processes which those houses have themselves devised. 
The President may be of one party and the houses of Con¬ 
gress of the other. The executive and legislature are not 
necessarily united in counsel with us as they are in England. 

Moreover, what is vastly more important in contrasting 
our system with others, we have not concentrated our 
constitutional arrangements in the federal government. 
We have multiplied our constitutional governments by the 
number of our states, and have set up in each common¬ 
wealth of a vast union of states a separate constitutional 
government to which is intrusted the regulation of all 
the ordinary relations of citizens to each other: their 
property rights, their family relations, their rights of con¬ 
tract, their relations as employer and employed, their suits 
at law, and their criminal liabilities. The federal govern¬ 
ment has only the regulation of those matters in which 
there is manifestly and of necessity a common interest, 
and for the rest constitutional government is put into 
commission among forty odd commonwealths. 

Both arrangements, the partial separation of the execu¬ 
tive from the legislature in the federal government and the 
parceling out of constitutional powers among the states, 
mark the historical stage alike of our own development 
and of the development of constitutional government on 
the other side of the water at which the government of 
the United States came into existence. In the state gov¬ 
ernments there is the same partial separation of legislature 
and executive that is characteristic of the federal govern¬ 
ment, because the constitutions of the states were formu¬ 
lated at the same time that the government of the Union 
was formulated. That is the characteristic they derive 
from the period in which they originated. The dispersion 


42 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


of constitutional powers among the states originated in 
circumstances peculiar to America. Switzerland, it is 
true, has a similar union and division; but though the 
results in Switzerland are very similar to the results in 
America, the circumstances of origin and formulation were 
very different in the two countries. Both peculiarities of 
our system yield upon analysis very interesting conclu¬ 
sions with regard to the nature and the characteristic 
processes of constitutional government. 

The Constitution of the United States, as framed by the 
constitutional convention of 1787, was intended to be a 
copy of the government of England, with such changes as 
seemed to our own statesmen necessary to safeguard the 
people of America against the particular sorts of prerogative 
and power that had worked them harm in their dealings 
with the government of the mother country over sea. 
But the government of England was then in a process of 
transition from an older to a newer form of the constitu¬ 
tional series and had not advanced far enough in the 
transformation to disclose its real character. Even in our 
own day, when English ministries are acknowledged to be 
mere committees of the majority in the House of Commons, 
the king chooses the ministers. At least such is the legal 
fiction. But it is not so in fact. It is merely a form. He 
is obliged to select those of whom the majority in the House 
of Commons approves. Indeed, he merely calls on the 
leader of that majority to form a ministry and leaves it to 
him to say whom the other ministers shall be. He can 
follow his own judgment in the choice only in the very 
exceptional case where no one man looms conspicuously 
first among the leaders of the Commons and the majority 
in the House is not itself certain of its preference. But 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 43 

when the Constitution of the United States was framed, 
what is now a form was a reality. The choice of the king 
was a very real one. He as often as possible chose minis¬ 
ters to his own mind. It is true that ever since the Revo¬ 
lution of 1688 it had generally been necessary for him to 
select men whom the Commons would follow, against 
whom they would at least not revolt; but the suffrage for 
members of parliament was then so disposed that the king 
and a small group of peers could generally determine the 
majority in the House of Commons by one sort of influence 
or another. The king could even on occasion turn his pliant 
majority over from one minister to another of opposite 
views when the policy of the crown changed or yielded to 
pressure. And so the change that was steadily coming 
upon the whole composition of the government was ob¬ 
scured. The members of the constitutional convention of 
1787 naturally enough thought of the king as the executive, 
a power separate from parliament not only but often in 
contest with it, and did not see that influences were already 
working throughout the system which were to transmute 
the ministry, so soon as the suffrage should be reformed 
and parliament should become truly representative of the 
nation, into a committee of the Commons of which the king 
should have formal appointment but not real choice, and 
which should itself constitute the working executive of the 
country, making choice, in the king’s stead, of every step 
of regulation or policy. The President created by our 
Constitution was conceived upon the model of what it 
was thought the king should have been under the older 
practice of the English constitution, at the very time when 
English theory and practice alike were changing and direct 
party government by the legislative leaders of the people 


44 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


was actually in course of being set up. We were fixed 
fast, in respect of the presidential office, at the stage of 
constitutional development which England was leaving for 
forms simpler and still more advanced. 

Our reasons for having a group of constitutional govern¬ 
ments united in a federal constitutional system were not 
reasons of theory, but reasons of fact. The thirteen little 
commonwealths which had drawn together in confedera¬ 
tion to fight out the war for independence had attained to 
a growth and character which had made veritable states of 
them. No merging of them as a single state under one 
government was possible or conceivable. It was a tri¬ 
umph of statesmanship to unite them by the bonds of a 
real federal state which was not a mere loosely joined 
confederation like that which had barely held together long 
enough to finish the war. A strong sense of community 
of interest had grown up among the colonies as they fought 
the French and Indians and struggled for independence; 
they were resolved to have a common life and stand to¬ 
gether for common objects; were keenly aware that sep¬ 
arately they could not survive the struggle for political 
existence which must certainly rise out of their own rival¬ 
ries and the covetous attacks of foreign powers; and were 
determined that their common government should be at 
least strong enough to unite them firmly as a nation. But 
the catalogue of common interests, the list of powers they 
must for their own sakes concede to their common govern¬ 
ment, did not bulk very big in their thoughts. Their state 
governments were their chief governments, their everyday, 
essential, intimate, vital instruments of social order and 
political action. For a little while they looked upon the 
new federal organization as an experiment, and thought it 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 45 

likely it might not last. Men of first-rate capacity and 
high political ambition entered the Service of their states 
readily enough, but looked askance upon offers of federal 
office. Only the extraordinary foresight and sagacity of 
the men who framed and advocated the federal constitu¬ 
tion, — only the prevailing force of such men as Wash¬ 
ington, and Hamilton, and Madison, — could have secured 
so compact and strong a central government in the face of 
the jealousy of local interests. The wonder was not that 
constitutional power remained “in commission” among the 
states, but that any central authority capable of rule and 
command had been got from the jealous politicians of the 
self-conscious little commonwealths. 

That the states survived the union was no political acci¬ 
dent. Their separateness did not consist in the mere 
casual circumstance that they had been settled at different 
times and their governments as colonies separately char¬ 
tered by the English kings. Vital social and economic 
differences existed between them. They could not have 
been made a real political community by any single con¬ 
stitution, however broadly and wisely conceived, because 
they were not a community in fact. They were in many 
respects sharply contrasted in life and interest. Virginia 
was much more unlike Massachusetts than Massachusetts 
was unlike England. The Carolinas, with their lumber 
forests and their rice fields, felt themselves utterly unlike 
Virginia; and the Middle states, with their mixture of 
population out of many lands, were unlike both New Eng¬ 
land and the South. The Middle states, New York, New 
Jersey, and Pennsylvania, were, indeed, not mere trans¬ 
plantations out of the mother country; they had the mix¬ 
ture of peoples in them which was in the years to come 


46 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

to be characteristic of America. In them rather than in 
the communities east or south of them lay hidden the 
prophecy of what America was to be, and they in some 
subtle way felt the contrast between their own ways and 
purposes and those of their neighbors very keenly. Con¬ 
stitutional government is based upon common understand¬ 
ings, common interests, common impulses, common habits, 
and these each of the little commonwealths of the Union 
had; but in the federal state which they had devised in 
the Philadelphia convention these things did not yet exist 
except as regarded the matters of commerce, of coinage, 
of post-offices and post roads, of piracies and felonies on 
the high seas, of war and military defense, and of dealings 
with foreign governments of which so careful a catalogue 
had been made in the eighth section of the first article of 
the federal constitution. The states were not one com¬ 
munity but many communities, and as such could not have 
had a single government; were under the necessity of hav¬ 
ing as many constitutional units as there were actual 
political divisions. The very complexity of the arrange¬ 
ment was of the essence of practical good sense and showed 
how true an instinct the leaders of that day had for success¬ 
ful constitutional method. 

Our life has undergone radical changes since 1787, and 
almost every change has operated to draw the nation 
together, to give it the common consciousness, the com¬ 
mon interests, the common standards of conduct, the habit 
of concerted action, which will eventually impart to it in 
many more respects the character of a single community. 
No student of constitutional development can have ob¬ 
served these vital processes without perceiving what their 
end and consequence will be. The copper threads of the 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 47 

telegraph run unbroken to every nook and corner of the 
great continent, like the nerves of a single body, transmit¬ 
ting thought and purpose with instant precision. Rail¬ 
ways lie in every valley and stretch across every plain. 
Cheap newspapers make the news of every country-side 
the news of the nation. Industrial organization knows 
nothing of state lines, and commerce sweeps from state 
to state in currents which can hardly be traced for num¬ 
ber and intricacy. Ideas, motives, standards of conduct, 
subtle items of interest, airs from out every region travel 
with the news, with the passenger on the express train, with 
the merchant’s goods and the farmer’s grain. Invisible 
shuttles of suggestion weave the thoughts and purposes 
of separate communities together, and a nation which will 
some day know itself a single community is a-making in 
the warp and woof of the fabric. The extraordinary way 
in which the powers of the federal government have been 
suffered to grow in recent years is evidence enough of the 
process. 

It is a process which has gone forward with a noble 
dramatic, even epic, majesty, filling the whole stage of the 
continent with movement. Until 1890 we had always a 
frontier within the nation; until that year the makers of 
the census had always been able in drawing their maps to 
sketch a line somewhere between the older states and the 
Pacific which marked the front of organized settlement. 
A hundred years had gone by since the constitution was 
framed, and throughout all the century the same process 
of settlement had been going on which marked the first 
establishment of the colonies. The stages of development 
within the nation itself varied all the way from communi¬ 
ties on the eastern coast which were at length hardly to be 


48 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


distinguished from European communities in their com¬ 
plexity, their variety, their pageantry of life to commu¬ 
nities in the West more sharply contrasted with those in 
the East than Virginia from England in‘the seventeenth 
century. To travel from the Atlantic coast to the frontier 
was like viewing a colossal exhibit illustrative by actual 
life of all the processes that had made and were making the 
nation. Since 1890 there has been no traceable frontier; 
the processes have begun to be intensive rather than 
extensive. The processes which knit close and unite all 
fibres into one cloth are now everywhere visible to any one 
who will look beneath the surface. 

It is familiar matter of history that it is this westward 
expansion, this constant projection of new communities 
into the West, this never ceasing spread and adaptation 
of our institutions and our modes of life, that has been the 
chief instrumentality in giving us national feeling, that has 
kept our eyes lifted to tasks which had manifest destiny 
in them, and could be compassed by no merely local agen¬ 
cies. It was the constant making of states that forced 
upon every generation of statesmen the question whether 
slavery should be extended or restricted in area until the 
Civil War answered it forever, and that controversy more 
than any other called the nation to consciousness and to 
action. Ours has been for the most part a very business¬ 
like history. Our congressional annals have not been 
brightened by many picturesque incidents or quickened by 
many dramatic moments, but there is one debate to which 
every student turns with the feeling that in it lay the fire 
of the central dramatic force of all our history. In the 
debate between Mr. Hayne and Mr. Webster the whole 
feeling and consciousness of America was changed. Mr. 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 49 

Hayne had uttered, with singular eloquence and ringing 
force, the voice of a day that was passing away; Mr. Web¬ 
ster the voice of a day that had come and whose forces were 
to supersede all others. There is a sense in which it may 
almost be said that Mr. Webster that day called a nation 
into being. What he said has the immortal quality of 
words which almost create the thoughts they speak. The 
nation lay as it were unconscious of its unity and purpose, 
and he called it into full consciousness. It could never 
again be anything less than what he had said that it was. 
It is at such moments and in the mouths of such inter¬ 
preters that nations spring from age to age in their develop¬ 
ment. And in our modern day influences less heated and 
dramatic than those of the days of the westward movement, 
influences that operate silent and unobserved in the economic 
and social changes that are working a great synthesis upon 
us, are carrying the nationalizing process steadily and irre¬ 
sistibly forward to the same great consummation. 

But there are natural limits beyond which such a devel¬ 
opment cannot go, and our state governments are likely 
to become, not less, but more vital units in our system as 
the natural scope and limits of their powers are more clearly 
and permanently established. In a great political system 
like our own, spread abroad over the vast spaces of a vari¬ 
ous continent, the states are essential. We are now in 
the midst of changes whose sweep is so wide that we exag¬ 
gerate their force and suppose that because they are not 
checked by state boundaries, and for the time even seem 
to obscure them, they will eventually obliterate them. We 
shall be surprised, when the changes are completed, to 
find how little they have altered our constitutional ma¬ 
chinery. What they will alter very radically is our national 

E 


50 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


consciousness, our perception of the interests we have in 
common, and of the principles upon which we must act in 
dealing with them. The change will be psychological rather 
than political, of the spirit of our action rather than of its 
method. Undoubtedly the sphere of our national govern¬ 
ment will be in many important particulars notably en¬ 
larged; but it will be in particulars and not in principle, 
by normal and legitimate alterations of the constitutional 
understanding and not by any reconstruction of the system. 

Not only are the separate and independent powers of 
the states based upon real economic and social differences 
between section and section of an enormous country, 
differences which necessitate adaptations of law and of 
administrative policy such as only local authorities acting 
in real independence can intelligently effect; but the states 
are our great and permanent contribution to constitutional 
development. I call them a great contribution because 
they have given to the understandings upon which con¬ 
stitutional government is based an intimacy and detail, 
an adjustment to local circumstances, a national diversity, 
an immediate adaptation to the variety of the people 
themselves, such as a little country may perhaps dispense 
with but a great continent cannot. The development of 
the United States would have been as impossible without 
the state governments as the original establishment of our 
federal system would have been. They have furnished us 
with an ideal means of integrating a vast and various popu¬ 
lation, adapting law to changing and temporary condi¬ 
tions, modulating development, and permanently securing 
each item of progress. They have been an incomparable 
means of sensitive adjustment between popular thought 
and governmental method, and may yet afford the world 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 51 


itself the model of federation and liberty it may in God’s 
providence come to seek. There can be no reasonable 
fear that our states will ever be less than they are, the 
normal constitutional machinery of our legal adjustment. 
As the federal government grows in scope and power it 
will grow, not to their curtailment, but only by way of 
supplementing them and by way of safeguarding those 
interests, from the first looked forward to by the makers 
of the Constitution, in which we shall consciously become 
a single community. 

This is not a conclusion got out of sentiment or prefer¬ 
ence, but out of the necessary inferences of constitutional 
history. Constitutional government can exist only where 
there is actual community of interest and of purpose, and 
cannot, if it be also ^/-government, express the life of any 
body of people thA does not constitute a veritable com¬ 
munity. Are the United States a community? In some 
things, yes; in most things, no. How impossible it is to 
generalize about the United States ! If a foreign acquaint¬ 
ance ask you a question about America, are you not obliged 
before replying to say, “ Which part of America do you 
refer to?” It would be hard to frame any single general¬ 
ization which would be true of the whole United States, 
whether it were social, economic, or political. It is a mat¬ 
ter of despair to describe a typical American. Types vary 
from region to region, and even from state to state. Amer¬ 
ica abounds in the vitality of variety and can be summed 
up in no formula either of description or of prophecy. 

Moreover, she is a country not merely constitutionally 
governed, but also self-governed. To look upon her and 
comprehend her is to comprehend the distinction. Self- 
government is the last, the consummate stage of consti- 


52 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


tutional development. Peoples which are not yet highly 
developed, self-conscious communities can be constitu¬ 
tionally governed, as England was before she had got her 
full character and knowledge of herself, under monarchs 
who ruled her by their own will, checked but not governed 
by her parliament; but only communities can govern 
themselves and dispense with every form of absolute 
authority. There is profound truth in Sir Henry Maine’s 
remark that the men who colonized America and made 
its governments, to the admiration of the world, could 
never have thus masterfully taken charge of their own 
affairs and combined stability with liberty in the process 
of absolute self-government if they had not sprung of a 
race habituated to submit to law and authority, if their 
fathers had not been the subjects of kings, if the stock 
of which they came had not served the long apprentice¬ 
ship of political childhood during which law was law without 
choice of their own. Self-government is not a mere form 
of institutions, to be had when desired, if only proper 
pains be taken. It is a form of character. It follows 
upon the long discipline which gives a people self-posses¬ 
sion, self-mastery, the habit of order and peace and common 
counsel, and a reverence for law which will not fail when 
they themselves become the makers of law: the steadiness 
and self-control of political maturity. And these things 
cannot be had without long discipline. 

The distinction is of vital concern to us in respect of 
practical choices of policy which we must make, and make 
very soon. We have dependencies to deal with and must 
deal with them in the true spirit of our own institutions. 
We can give the Filipinos constitutional government, 
a government which they may count upon to be just, a 


UNITED STATES IN CONSTITUTIONAL DEVELOPMENT 53 

government based upon some clear and equitable under¬ 
standing, intended for their good and not for our aggran¬ 
dizement; but we must ourselves for the present supply 
that government. It would, it is true, be an unprece¬ 
dented operation, reversing the process of Runnymede, but 
America has before this shown the world enlightened pro¬ 
cesses of politics that were without precedent. It would 
have been within the choice of John to summon his barons 
to Runnymede and of his own initiative enter into a con¬ 
stitutional understanding with them; and it is within our 
choice to do a similar thing, at once wise and generous, in 
the government of the Philippine Islands. But we cannot 
give them self-government. Self-government is not a thing 
that can be 'given’ to any people, because it is a form of 
character and not a form of constitution. No people can be 
1 given’ the self-control of maturity. Only a long appren¬ 
ticeship of obedience can secure them the precious pos¬ 
session, a thing no more to be bought than given. They 
cannot be presented with the character of a community, 
but it may confidently be hoped that they will become a 
community under the wholesome and salutary influences of 
just laws and a sympathetic administration; that they will 
after a while understand and master themselves, if in the 
meantime they are understood and served in good con¬ 
science by those set over them in authority. 

We of all people in the world should know these funda¬ 
mental things and should act upon them, if only to illustrate 
the mastery in politics which belongs to us of hereditary 
right. To ignore them would be not only to fail and fail 
miserably, but to fail ridiculously and belie ourselves. 
Having ourselves gained self-government by a definite 
process which can have no substitute, let us put the peo¬ 
ples dependent upon us in the right way to gain it also. 


Ill 


THE PRESIDENT OF THE UNITED STATES 

It is difficult to describe any single part of a great 
governmental system without describing the whole of it. 
Governments are living things and operate as organic 
wholes. Moreover, governments have their natural evolu¬ 
tion and are one thing in one age, another in another. 
The makers of the Constitution constructed the federal 
government upon a theory of checks and balances which 
was meant to limit the operation of each part and allow to 
no single part or organ of it a dominating force;, but no 
government can be successfully conducted upon so mechani¬ 
cal a theory. Leadership and control must be lodged 
somewhere; the whole art of statesmanship is the art 
of bringing the several parts of government into effective 
cooperation for the accomplishment of particular common 
jpbjects, — and party objects at that. Our study of each 
part of our federal system, if we are to discover our real 
government as it lives, must be made to disclose to us its 
operative coordination as a whole: its places of leadership, 
its method of action, how it operates, what checks it, 
what gives it energy and effect. Governments are what 
politicians make them, and it is easier to write of the Presi¬ 
dent than of the presidency. 

The government of the United States was constructed 
upon the Whig theory of political dynamics, which was 
a sort of unconscious copy of the Newtonian theory of 
54 


THE PRESIDENT OF THE UNITED STATES 


55 


the universe. In our own day, whenever we discuss the 
structure or development of anything, whether in nature 
or in society, we consciously or unconsciously follow Mr. 
Darwin; but before Mr. Darwin, they followed Newton. 
Some single law, like the law of gravitation, swung each 
system of thought and gave it its principle of unity. Every 
sun, every planet, every free body in the spaces of the 
heavens, the world itself, is kept in its place and reined 
to its course by the attraction of bodies that swing with 
equal order and precision about it, themselves governed 
by the nice poise and balance of forces which give the 
whole system of the universe its symmetry and perfect 
adjustment. The Whigs had tried to give England a 
similar constitution. They had had no wish to destroy 
the throne, no conscious desire to reduce the king to a 
mere figurehead, but had intended only to surround and 
offset him with a system of constitutional checks and 
balances which should regulate his otherwise arbitrary 
course and make it at least always calculable. 

They had made no clear analysis of the matter in their 
own thoughts; it has not been the habit of English poli¬ 
ticians, or indeed of English-speaking politicians on either 
side of the water, to be clear theorists. It was left to a 
Frenchman to point out to the Whigs what they had done. 
They had striven to make Parliament so influential in the 
making of laws and so authoritative in the criticism of the 
king’s policy that the king could in no matter have his 
own way without their cooperation and assent, though 
they left him free, the while, if he chose, to interpose an 
absolute veto upon the acts of Parliament. They had 
striven to secure for the courts of law as great an inde¬ 
pendence as possible, so that they might be neither over- 


56 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

awed by parliament nor coerced by the king. In brief, as 
Montesquieu pointed out to them in his lucid way, they 
had sought to balance executive, legislature, and judiciary ~ 
off against one another by a series of checks and counter¬ 
poises, which Newton might readily have recognized as 
suggestive of the mechanism of the heavens. 

The makers of our federal Constitution followed the 
scheme as they found it expounded in Montesquieu, followed 
it with genuine scientific enthusiasm. The admirable ex¬ 
positions of the Federalist read like thoughtful applica¬ 
tions of Montesquieu to the political needs and circum¬ 
stances of America. They are full of the theory of checks- - 
and balances. The President is balanced off against 
Congress, Congress against the President, and each against 
the courts. Our statesmen of the earlier generations 
quoted no one so often as Montesquieu, and they quoted 
him always as a scientific standard in the field of politics. 
Politics is turned into mechanics under his touch. The 
theory of gravitation is supreme. 

The trouble with the theory is that government is not 
a machine, but a living thing. It falls, not under the 
theory of the universe, but under the theory of organic 
life. It is accountable to Darwin, not to Newton. It is 
modified by its environment, necessitated by its tasks, 
shaped to its functions by the sheer pressure of life. No 
living thing can have its organs offset against each other 
as checks, and live. On the contrary, its life is dependent 
upon their quick cooperation, their ready response to the 
commands of instinct or intelligence, their amicable com¬ 
munity of purpose. Government is not a body of blind 
forces; it is a body of men, with highly differentiated 
functions, no doubt, in our modern day of specialization, 


THE PRESIDENT OF THE UNITED STATES 57 


but with a common task and purpose. Their cooperation 
is indispensable, their warfare fatal. There can be no 
successful government without leadership or without the 
intimate, almost instinctive, coordination of the organs of 
life and action. This is not theory, but fact, and displays 
its force as fact, whatever theories may be thrown across 
its track. Living political constitutions must be Dar¬ 
winian in structure and in practice. 

Fortunately, the definitions and prescriptions of our 
constitutional law, though conceived in the Newtonian 
spirit and upon the Newtonian principle, are sufficiently 
broad and elastic to allow for the play of life and circum¬ 
stance. Though they were Whig theorists, the men who 
framed the federal Constitution were also practical states¬ 
men with an experienced eye for affairs and a quick prac¬ 
tical sagacity in respect of the actual structure of gov¬ 
ernment, and they have given us a thoroughly workable 
model. If it had in fact been a machine governed by 
mechanically automatic balances, it would have had no 
history; but it was not, and its history has been rich with 
the influences and personalities of the men who have 
conducted it and made it a living reality. The govern¬ 
ment of the United States has had a vital and normal 
organic growth and has proved itself eminently adapted to 
express the changing temper and purposes of the Ameri¬ 
can people from age to age. 

That is the reason why it is easier to write of the Presi¬ 
dent than of the presidency. The presidency has been one 
thing at one time, another at another, varying with the man 
who occupied the office and with the circumstances that sur¬ 
rounded him. One account must be given of the office during 
the period 1789 to 1825, when the government was getting 


58 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


its footing both at home and abroad, struggling for its 
place among the nations and its full credit among its 
own people; when English precedents and traditions were 
strongest; and when the men chosen for the office were 
men bred to leadership in a way that attracted to them the 
attention and confidence of the whole country. Another 
account must be given of it during Jackson’s time, when 
an imperious man, bred not in deliberative assemblies or 
quiet councils, but in the field and upon a rough frontier, 
worked his own will upon affairs, with or without formal 
sanction of law, sustained by a clear undoubting conscience 
and the love of a people who had grown deeply impatient 
of the regime he had supplanted. Still another account 
must be given of it during the years 1836 to 1861, when 
domestic affairs of many debatable kinds absorbed the 
country, when Congress necessarily exercised the chief 
choices of policy, and when the Presidents who followed 
one another in office lacked the personal force and initiative 
to make for themselves a leading place in counsel. After 
that came the Civil War and Mr. Lincoln’s unique task 
and achievement, when the executive seemed for a little 
while to become by sheer stress of circumstances the whole 
government, Congress merely voting supplies and assenting 
to necessary laws, as Parliament did in the time of the 
Tudors. From 1865 to 1898 domestic questions, legisla¬ 
tive matters in respect of which Congress had naturally 
to make the initial choice, legislative leaders the chief 
decisions of policy, came once more to the front, and no 
President except Mr. Cleveland played a leading and 
decisive part in the quiet drama of our national life. 
Even Mr. Cleveland may be said to have owed his great 
role in affairs rather to his own native force and the con- 


THE PRESIDENT OF THE UNITED STATES 


59 


fused politics of the time, than to any opportunity of 
leadership naturally afforded him by a system which had 
subordinated so many Presidents before him to Congress. 
The war with Spain again changed the balance of parts. 
Foreign questions became leading questions again, as they 
had been in the first days of the government, and in 
them the President was of necessity leader. Our new 
place in the affairs of the world has since that year of 
transformation kept him at the front of our government, 
where our own thoughts and the attention of men every¬ 
where is centred upon him. 

Both men and circumstances have created these con¬ 
trasts in the administration and influence of the office of 
President. We have all been disciples of Montesquieu, 
but we have also been practical politicians. Mr. Bagehot 
once remarked that it was no proof of the excellence of 
the Constitution of the United States that the Americans 
had operated it with conspicuous success because the 
Americans could run any constitution successfully; and, 
while the compliment is altogether acceptable, it is cer¬ 
tainly true that our practical sense is more noticeable 
than our theoretical consistency, and that, while we were 
once all constitutional lawyers, we are in these latter days 
apt to be very impatient of literal and dogmatic interpre¬ 
tations of constitutional principle. 

Jlhe- maker^-of-the Constitution seem to have thought 
of the President as what the stricter Whig theorists 
wished the king to be: only the legal executive, the 
presiding and guiding authority in the application of 
law and the execution of policy. His veto upon legis¬ 
lation was only his 1 check ’ on Congress, — was a power 
of restraint, not of guidance. He was empowered to pre- 




60 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

vent bad laws, but he was not to be given an opportunity 
to make good ones. As a matter of fact he has become 
very much more. He has become the leader of his party 
and the guide of the nation in political purpose, and there¬ 
fore in legal action. The constitutional structure of the 
government has hampered and limited his action in these 
significant roles, but it has not prevented it. The influence 
of the President has varied with the men who have been 
Presidents and with the circumstances of their times, but 
the tendency has been unmistakably disclosed, and springs 
out of the very nature of government itself. It is merely 
the proof that our government is a living, organic thing, 
and must, like every other government, work out the 
close synthesis of active parts which can exist only when 
leadership is lodged in some one man or group of men. 
You cannot compound a successful government out of 
antagonisms. Greatly as the practice and influence of 
Presidents has varied,~there can be no mistaking the fact 
that we have grown more and more inclined from genera¬ 
tion to generation to look to the President as the unifying 
force in our complex system, the leader both of his party 
and of the nation. To do so is not inconsistent with the 
actual provisions of the Constitution; it is only incon¬ 
sistent with a very mechanical theory of its meaning and 
intention. The Constitution contains no theories. It is 
as practical a document as Magna Carta. 

The role of party leader is forced upon the President 
by the method of his selection. The theory of the makers 
of the Constitution may have been that the presidential 
electors would exercise a real choice, but it is hard to un¬ 
derstand how, as experienced politicians, they can have 
expected anything of the kind. They did not provide that 


THE PRESIDENT OF THE UNITED STATES 61 

the electors should meet as one body for consultation and 
make deliberate choice of a President and Vice-President, 
but that they should meet “in their respective states” 
and cast their ballots in separate groups, without the 
possibility of consulting and without the least likelihood 
of agreeing, unless some such means as have actually been 
used were employed to suggest and determine their choice 
beforehand. It was the practice at first to make party 
nominations for the presidency by congressional caucus. 
Since the Democratic upheaval of General Jackson’s time 
nominating conventions have taken the place of congres¬ 
sional caucuses; and the choice of Presidents by party 
conventions has had some very interesting results. 

We are apt to think of the choice of nominating conven¬ 
tions as somewhat haphazard. We know, or think that 
we know, how their action is sometimes determined, and 
the knowledge makes us very uneasy. We know that 
there is no debate in nominating conventions, no discussion 
of the merits of the respective candidates, at which the 
country can sit as audience and assess the wisdom of the 
final choice. If there is any talking to be done, aside 
from the formal addresses of the temporary and permanent 
chairmen and of those who present the platform and the 
names of the several aspirants for nomination, the assembly 
adjourns. The talking that is to decide the result must be 
done in private committee rooms and behind the closed 
doors of the headquarters of the several state delegations 
to the convention. The intervals between sessions are 
filled with a very feverish activity. Messengers run from 
one headquarters to another until the small hours of the 
morning. Conference follows conference in a way that 
is likely to bring newspaper correspondents to the verge 


62 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

of despair, it being next to impossible to put the rumors 
together into any coherent story of what is going on. Only 
at the rooms of the national committee of the party is 
there any clear knowledge of the situation as a whole; 
and the excitement of the members of the convention 
rises from session to session under the sheer pressure of 
uncertainty. The final majority is compounded no out¬ 
sider and few members can tell how. 

Many influences, too, play upon nominating conven¬ 
tions, which seem mere winds of feeling. They sit in 
great halls, with galleries into which crowd thousands of 
spectators from all parts of the country, but chiefly, of 
course, from the place at which the convention sits, and 
the feeling of the galleries is transmitted to the floor. 
The cheers of mere spectators echo the names of popular 
candidates, and every excitement on the floor is enhanced 
a hundred fold in the galleries. Sudden gusts of impulse 
are apt to change the whole feeling of the convention, and 
offset in a moment the most careful arrangements of man¬ 
aging politicians. It has come to be a commonly accepted 
opinion that if the Republican convention of 1860 had not 
met in Chicago, it would have nominated Mr. Seward and 
not Mr. Lincoln. Mr. Seward was the acknowledged leader 
of the new party; had been its most telling spokesman; 
had given its tenets definition and currency. Mr. Lincoln 
had not been brought within view of the country as a whole 
until the other day, when he had given Mr. Douglas so 
hard a fight to keep his seat in the Senate, and had but 
just now given currency among thoughtful men to the 
striking phrases of the searching speeches he had made in 
debate with his practised antagonist. But the convention 
met in Illinois, amidst throngs of Mr. Lincoln’s ardent 


THE PRESIDENT OF THE UNITED STATES , 63 


friends and advocates. His managers saw to it that the 
galleries were properly filled with men who would cheer 
every mention of his name until the hall was shaken. 
Every influence of the place worked for him and he was 
chosen. 

Thoughtful critics of our political practices have not 
allowed the excellence of the choice to blind them to the 
danger of the method. They have known too many 
examples of what the galleries have done to supplement 
the efforts of managing politicians to feel safe in the pres¬ 
ence of processes which seem rather those of intrigue and 
impulse than those of sober choice. They can cite instances, 
moreover, of sudden, unlooked-for excitements on the 
floor of such bodies which have swept them from the con¬ 
trol of all sober influences and hastened them to choices 
which no truly deliberative assembly could ever have made. 
There is no training school for Presidents, unless, as some 
governors have wished, it be looked for in the governor¬ 
ships of states; and nominating conventions have con¬ 
fined themselves in their selections to no class, have de¬ 
manded of aspirants no particular experience or knowledge 
of affairs. They have nominated lawyers without politi¬ 
cal experience, soldiers, editors of newspapers, newspaper 
correspondents, whom they pleased, without regard to 
their lack of contact with affairs. It would seem as if 
their choices were almost matters of chance. 

In reality there is much more method, much more 
definite purpose, much more deliberate choice in the ex¬ 
traordinary process than there seems to be. The leading 
spirits of the national committee of each party could give 
an account of the matter which would put a very different 
face on it and make the methods of nominating conven- 


64 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


tions seem, for all the undoubted elements of chance there 
are in them, on the whole very manageable. Moreover, 
the party that expects to win may be counted on to make 
a much more conservative and thoughtful selection of a 
candidate than the party that merely hopes to win. The 
haphazard selections which seem to discredit the system 
are generally made by conventions of the party unaccus¬ 
tomed to success. Success brings sober calculation and 
a sense of responsibility. 

And it must be remembered also that our political 
system is not so coordinated as to supply a training for 
presidential aspirants or even to make it absolutely 
necessary that they should have had extended experience 
in public affairs. Certainly the country has never thought 
of members of Congress as in any particular degree fitted 
for the presidency. Even the Vice President is not afforded 
an opportunity to learn the duties of the office. The men 
best prepared, no doubt, are those who have been governors 
of states or members of cabinets. And yet even they are 
chosen for their respective offices generally by reason of 
a kind of fitness and availability which does not necessarily 
argue in them the size and power that would fit them for 
the greater office. In our earlier practice cabinet officers 
were regarded as in the natural line of succession to the 
presidency. Mr. Jefferson had been in General Washing¬ 
ton’s cabinet, Mr. Madison in Mr. Jefferson’s, Mr. Monroe 
in Mr. Madison’s; and generally it was the Secretary of 
State who was taken. But those were days when English 
precedent was strong upon us, when cabinets were expected 
to be made up of the political leaders of the party in power; 
and from their ranks subsequent candidates for the presi¬ 
dency were most likely to be selected. The practice, as 


THE PRESIDENT OF THE UNITED STATES 


65 


we look back to it, seems eminently sensible, and we wonder 
why it should have been so soon departed from and ap¬ 
parently forgotten. We wonder, too, why eminent sena¬ 
tors have not sometimes been chosen; why members of 
the House have so seldom commanded the attention of 
nominating conventions; why public life has never offered 
itself in any definite way as a preparation for the presi¬ 
dential office. 

If the matter be looked at a little more closely, it will 
be seen that the office of President, as we have used and 
developed it, really does not demand actual experience in 
affairs so much as particular qualities of mind and char¬ 
acter which we are at least as likely to find outside the 
ranks of our public men as within them. What is it that 
a nominating convention wants in the man it is to present 
to the country for its suffrages? A man who will be and 
who will seem to the country in some sort an embodiment 
of the character and purpose it wishes its government to 
have, — a man who understands his own day and the 
needs of the country, and who has the personality and 
the initiative to enforce his views both upon the people and 
upon Congress. It may seem an odd way to get such a man. 
It is even possible that nominating conventions and those 
who guide them do not realize entirely what it is that they 
do. But in simple fact the convention picks out a party 
leader from the body of the nation. Not that it expects its 
nominee to direct the interior government of the party and 
to supplant its already accredited and experienced spokes¬ 
men in Congress and in its state and national committees; 
but it does of necessity expect him to represent it before 
public opinion and to stand before the country as its repre¬ 
sentative man, as a true type of what the country may 


66 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

expect of the party itself in purpose and principle. It 
cannot but be led by him in the campaign; if he be elected, 
it cannot but acquiesce in his leadership of the government 
itself. What the country will demand of the candidate 
will be, not that he be an astute politician, skilled and 
practised in affairs, but that he be a man such as it can 
trust, in character, in intention, in knowledge of its needs, 
in perception of the best means by which those needs may 
be met, in capacity to prevail by reason of his own weight 
and integrity. Sometimes the country believes in a party, 
but more often it believes in a man; and conventions have 
often shown the instinct to perceive which it is that the 
country needs in a particular presidential year, a mere 
representative partisan, a military hero, or some one who 
will genuinely speak for the country itself, whatever be his 
training and antecedents. It is in this sense that the 
President has the role of party leader thrust upon him by 
the very method by which he is chosen. 

As legal executive, his constitutional aspect, the Presi¬ 
dent cannot be thought of alone. He cannot execute laws. 
Their actual daily execution must be taken care of by the 
several executive departments and by the now innumer¬ 
able body of federal officials throughout the country. In 
respect of the strictly executive duties of his office the 
President may be said to administer the presidency in con¬ 
junction with the members of his cabinet, like the chairman 
of a commission. He is even of necessity much less active 
in the actual carrying out of'the law than are his colleagues 
and advisers. It is therefore becoming more and more 
true, as the business of the government becomes more 
and more complex and extended, that the President is 
becoming more and more a political and less and less an 


THE PRESIDENT OF THE UNITED STATES 


67 


executive officer. His executive powers are in commission, 
while his political powers more and more centre and accu¬ 
mulate upon him and are in their very nature personal and 
inalienable. 

Only the larger sort of executive questions are brought 
to him. Departments which run with easy routine and 
whose transactions bring few questions of general policy 
to the surface may proceed with their business for months 
and even years together without demanding his attention; 
and no department is in any sense under his direct charge. 
Cabinet meetings do not discuss detail: they are concerned 
only with the larger matters of policy or expediency which 
important business is constantly disclosing. There are no 
more hours in the President’s day than in another man’s. 
If he is indeed the executive, he must act almost entirely 
by delegation, and is in the hands of his colleagues. He is 
likely to be praised if things go well, and blamed if they 
go wrong; but his only real control is of the persons to 
whom he deputes the performance of executive duties. 
It is through no fault or neglect of his that the duties 
apparently assigned to him by the Constitution have come 
to be his less conspicuous, less important duties, and that 
duties apparently not assigned to him at all chiefly occupy 
his time and energy. The one set of duties it has proved 
practically impossible for him to perform; the other it has 
proved impossible for him to escape. 

He cannot escape being the leader of his party except 
by incapacity and lack of personal force, because he is 
at once the choice of the party and of the nation. He 
is the party nominee, and the only party nominee for 
whom the whole nation votes. Members of the House 
and Senate are representatives of localities, are voted for 


68 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


only by sections of voters, or by local bodies of electors 
like the members of the state legislatures. There is no 
national party choice except that of President. No one 
else represents the people as a whole, exercising a national 
choice; and inasmuch as his strictly executive duties are 
in fact subordinated, so far at any rate as all detail is con¬ 
cerned, the President represents not so much the party’s 
governing efficiency as its controlling ideals and principles. 
He is not so much part of its organization as its vital link 
of connection with the thinking nation. He can dominate 
his party by being spokesman for the real sentiment and 
purpose of the country, by giving direction to opinion, 
by giving the country at once the information and the 
statements of policy which will enable it to form its judg¬ 
ments alike of parties and of men. 

For he is also the political leader of the nation, or has it 
in his choice to be. The nation as a whole has chosen him, 
and is conscious that it has no other political spokesman. 
His is the only national voice in affairs. Let him once win 
the admiration and confidence of the country, and no other 
single force can withstand him, no combination of forces 
will easily overpower him. His position takes the imagi¬ 
nation of the country. He is the representative of no 
constituency, but of the whole people. When he speaks 
in his true character, he speaks for no special interest. If 
he rightly interpret the national thought and boldly insist 
upon it, he is irresistible; and the country never feels the 
zest of action so much as when its President is of such insight 
and calibre. Its instinct is for unified action, and it craves 
a single leader. It is for this reason that it will often prefer 
to choose a man rather than a party. A President whom 
it trusts can not only lead it, but form it to his own views. 


THE PRESIDENT OF THE UNITED STATES 


It is the extraordinary isolation imposed upon the Presi¬ 
dent by our system that makes the character and oppor¬ 
tunity of his office so extraordinary. In him are centred 
both opinion and party. He may stand, if he will, a little 
outside party and insist as if it were upon the general 
opinion. It is with the instinctive feeling that it is upon 
occasion such a man that the country wants that nominat¬ 
ing conventions will often nominate men who are not their 
acknowledged leaders, but only such men as the country 
would like to see lead both its parties. The President may 
also, if he will, stand within the party counsels and use the 
advantage of his power and personal force to control its 
actual programs. He may be both the leader of his 
party and the leader of the nation, or he may be one or the 
other. If he lead the nation, his party can hardly resist 
him. His office is anything he has the sagacity and force 
to make it. 

That is the reason why it has been one thing at one time, 
another at another. The Presidents who have not made 
themselves leaders have lived no more truly on that account 
in the spirit of the Constitution than those whose force has 
told in the determination of law and policy. No doubt 
Andrew Jackson overstepped the bounds meant to be set 
to the authority of his office. It was certainly in direct 
contravention of the spirit of the Constitution that he should 
have refused to respect and execute decisions of the Supreme 
Court of the United States, and no serious student of our 
history can righteously condone what he did in such matters 
on the ground that his intentions were upright and his 
principles pure. But the Constitution of the United States 
is not a mere lawyers’ document: it is a vehicle of life, 
and its spirit is always the spirit of the age. Its prescrip- 


70 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

tions are clear and we know what they are; a written 
document makes lawyers of us all, and our duty as 
citizens should make us conscientious lawyers, reading 
the text of the Constitution without subtlety or sophis¬ 
tication; but life is always your last and most authorita¬ 
tive critic. 

Some of our Presidents have deliberately held themselves 
off from using the full power they might legitimately have 
used, because of conscientious scruples, because they were 
more theorists than statesmen. They have held the strict 
literary theory of the Constitution, the Whig theory, the 
Newtonian theory, and have acted as if they thought that 
Pennsylvania Avenue should have been even longer than 
it is; that there should be no intimate communication of 
any kind between the Capitol and the White House; that 
the President as a man was no more at liberty to lead the 
houses of Congress by persuasion than he was at liberty 
as President to dominate them by authority, — supposing 
that he had, what he has not, authority enough to dominate 
them. But the makers of the Constitution were not enact¬ 
ing Whig theory, they were not making laws with the ex¬ 
pectation that, not the laws themselves, but their opinions, 
known by future historians to lie back of them, should 
govern the constitutional action of the country. They 
were statesmen, not pedants, and their laws are sufficient 
to keep us to the paths they set us upon. The President 
is at liberty, both in law and conscience, to be as big a 
man as he can. His capacity will set the limit; and if 
Congress be overborne by him, it will be no fault of the 
makers of the Constitution, — it will be from no lack of 
constitutional powers on its part, but only because the 
President has the nation behind him, and Congress has not. 


THE PRESIDENT OF THE UNITED STATES 


71 


He has no means of compelling Congress except through 
public opinion. 

That I say he has no means of compelling Congress will 
show what I mean, and that my meaning has no touch of radi¬ 
calism or iconoclasm in it. There are illegitimate means by 
which the President may influence the action of Congress. 
He may bargain with members, not only with regard to 
appointments, but also with regard to legislative measures. 
He may use his local patronage to assist members to get or 
retain their seats. He may interpose his powerful influ¬ 
ence, in one covert way or another, in contests for places 
in the Senate. He may also overbear Congress by arbi¬ 
trary acts which ignore the laws or virtually override them.' 
He may even substitute his own orders for acts of Congress 
which he wants but cannot get. Such things are not only 
deeply immoral, they are destructive of the fundamental 
understandings of constitutional government and, there¬ 
fore, of constitutional government itself. They are sure, 
moreover, in a country of free public opinion, to bring their 
own punishment, to destroy both the fame and the power 
of the man who dares to practise them. No honorable 
man includes such agencies in a sober exposition of the 
Constitution or allows himself to think of them when he 
speaks of the influences of “life” which govern each gen¬ 
eration’s use and interpretation of that great instrument, 
our sovereign guide and the object of our deepest reverence. 
Nothing in a system like ours can be constitutional which 
is immoral or which touches the good faith of those who 
have sworn to obey the fundamental law. The reprobation 
of all good men will always overwhelm such influences with 
shame and failure. But the personal force of the President 
is perfectly constitutional to any extent to which he chooses 


72 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

to exercise it, and it is by the clear logic of our constitu¬ 
tional practice that he has become alike the leader of his 
party and the leader of the nation. 

The political powers of the President are not quite 
so obvious in their scope and character when we con¬ 
sider his relations with Congress as when we consider his 
relations to his party and to the nation. They need, 
therefore, a somewhat more critical examination. Lead¬ 
ership in government naturally belongs to its executive 
officers, who are daily in contact with practical conditions 
and exigencies and whose reputations alike for good judg¬ 
ment and for fidelity are at stake much more than are those 
of the members of the legislative body at every turn of the 
law’s application. The law-making part of the govern¬ 
ment ought certainly to be very hospitable to the sugges¬ 
tions of the planning and acting part of it. Those Presi¬ 
dents who have felt themselves bound to adhere to the 
strict literary theory of the Constitution have scrupulously 
refrained from attempting to determine either the subjects 
or the character of legislation, except so far as they were 
obliged to decide for themselves, after Congress had acted, 
whether they should acquiesce in it or not. And yet the 
Constitution explicitly authorizes the President to recom¬ 
mend to Congress “such measures as he shall deem neces¬ 
sary and expedient,” and it is not necessary to the in¬ 
tegrity of even the literary theory of the Constitution to 
insist that such recommendations should be merely per¬ 
functory. Certainly General Washington did not so regard 
them, and he stood much nearer the Whig theory than 
we do. A President’s messages to Congress have no more 
weight or authority than their intrinsic reasonableness and 
importance give them: but that is their only constitutional 


THE PRESIDENT OF THE UNITED STATES 73 

limitation. The Constitution certainly does not forbid the 
President to back them up, as General Washington did, 
with such personal force and influence as he may possess. 
Some of our Presidents have felt the need, which un¬ 
questionably exists in our system, for some spokesman of 
the nation as a whole, in matters of legislation no less than 
in other matters, and have tried to supply Congress with 
the leadership of suggestion, backed by argument and by 
iteration and by every legitimate appeal to public opinion. 
Cabinet officers are shut out from Congress; the President 
himself has, by custom, no access to its floor; many long- 
established barriers of precedent, though not of law, 
hinder him from exercising any direct influence upon its 
deliberations; and yet he is undoubtedly the only spokes¬ 
man of the whole people. They have again and again, as 
often as they were afforded the opportunity, manifested 
their satisfaction when he has boldly accepted the role 
of leader, to which the peculiar origin and character of his 
authority entitle him. The Constitution bids him speak, 
and times of stress and change must more and more thrust 
upon him the attitude of originator of policies. 

His is the vital place of action in the system, whether he 
accept it as such or not, and the office is the measure of the 
man, — of his wisdom as well as of his force. His veto 
abundantly equips him to stay the hand of Congress when 
he will. It is seldom possible to pass a measure over his 
veto, and no President has hesitated to use the veto when 
his own judgment of the public good was seriously at issue 
with that of the houses. The veto has never been suffered 
to fall into even temporary disuse with us. In England it 
has ceased to exist, with the change in the character of the 
executive. There has been no veto since Anne’s day, 


f 




74 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


because ever since the reign of Anne the laws of England 
have been originated either by ministers who spoke the 
king’s own will or by ministers whom the king did not dare 
gainsay; and in our own time the ministers who formulate 
the laws are themselves the executive of the nation; a 
veto would be a negative upon their own power. If bills 
pass of which they disapprove, they resign and give place 
to the leaders of those who approve them. The framers 
of the Constitution made in our President a more powerful, 
because a more isolated, king than the one they were imi¬ 
tating ; and because the Constitution gave them their veto 
in such explicit terms, our Presidents have not hesitated 
to use it, even when it put their mere individual judgment , 
against that of large majorities in both houses of Congress. s 
And yet in the exercise of the power to suggest legislation, 
quite as explicitly conferred upon them by the Constitu¬ 
tion, some of our Presidents have seemed to have a timid 
fear that they might offend some law of taste which had 
become a constitutional principle. 

In one sense their messages to Congress have no more 
authority than the letters of any other citizen would have. 
Congress can heed or ignore them as it pleases; and there 
have been periods of our history when presidential messages 
were utterly without practical significance, perfunctory 
documents which few persons except the editors of news¬ 
papers took the trouble to read. But if the President has 
personal force and cares to exercise it, there is this tre¬ 
mendous difference between his messages and the views 
of any other citizen, either outside Congress or in it: that 
the whole country reads them and feels that the writer 
speaks with an authority and a responsibility which the 
people themselves have given him. 



THE PRESIDENT OF THE UNITED STATES 75 


The history of our cabinets affords a striking illustration 
of the progress of the idea that the President is not merely 
| the legal head but also the political leader of the nation. 

1 In the earlier days of the government it was customary 
for the President to fill his cabinet with the recognized 
leaders of his party. General Washington even tried the 
experiment which William of Orange tried at the very 
beginning of the era of cabinet government. He called 
to his aid the leaders of both political parties, associating 
Mr. Hamilton with Mr. Jefferson, on the theory that all 
views must be heard and considered in the conduct of the 
government. That was the day in which English precedent 
prevailed, and English cabinets were made up of the chief 
political characters of the day. But later years have wit¬ 
nessed a marked change in our practice, in this as in many 
other things. The old tradition was indeed slow in dying 
out. It persisted with considerable vitality at least until 
General Garfield’s day, and may yet from time to time 
revive, for many functions of our cabinets justify it and 
make it desirable. But our later Presidents have appar¬ 
ently ceased to regard the cabinet as a council of party 
leaders such as the party they represent would have chosen. 
They look upon it rather as a body of personal advisers 
whom the President chooses from the ranks of those whom 
he personally trusts and prefers to look to for advice. 
Our recent Presidents have not sought their associates 
among those whom the fortunes of party contest have 
brought into prominence and influence, but have called 
their personal friends and business colleagues to cabinet 
positions, and men who have given proof of their efficiency 
in private, not in public, life, — bankers who had never 
had any place in the formal counsels of the party, eminent 



76 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


lawyers who had held aloof from politics, private secre¬ 
taries who had shown an unusual sagacity and proficiency 
in handling public business; as if the President were himself 
alone the leader of his party, the members of his cabinet 
only his private advisers, at any rate advisers of his private 
choice. Mr. Cleveland may be said to have been the first 
President to make this conception of the cabinet prominent 
in his choices, and he did not do so until his second adminis¬ 
tration. Mr. Roosevelt has emphasized the idea. 

Upon analysis it seems to mean this: the cabinet is an 
executive, not a political body. The President cannot 
himself be the actual executive; he must therefore find, 
to act in his stead, men of the best legal and business gifts, 
and depend upon them for the actual administration of 
the government in all its daily activities. If he seeks 
political advice of his executive colleagues, he seeks it 
because he relies upon their natural good sense and ex¬ 
perienced judgment, upon their knowledge of the country 
and its business and social conditions, upon their sagacity 
as representative citizens of more than usual observation 
and discretion; not because they are supposed to have had 
any very intimate contact with politics or to have made a 
profession of public affairs. He has chosen, not representa¬ 
tive politicians, but eminent representative citizens, select¬ 
ing them rather for their special fitness for the great busi¬ 
ness posts to which he has assigned them than for their 
political experience, and looking to them for advice in the 
actual conduct of the government rather than in the shap¬ 
ing of political policy. They are, in his view, not neces¬ 
sarily political officers at all. 

It may with a great deal of plausibility be argued that 
the Constitution looks upon the President himself in the 


THE PRESIDENT OF THE UNITED STATES 


77 


same way. It does not seem to make him a prime minister 
or the leader of the nation’s counsels. Some Presidents 
are, therefore, and some are not. It depends upon the 
man and his gifts. He may be like his cabinet, or he may 
be more than his cabinet. His office is a mere vantage 
ground from which he may be sure that effective words of 
advice and timely efforts at reform will gain telling mo¬ 
mentum. He has the ear of the nation as of course, and 
a great person may use such an advantage greatly. If he 
use the opportunity, he may take his cabinet into partner¬ 
ship or not, as he pleases; and so its character may vary 
with his. Self-reliant men will regard their cabinets as 
executive councils; men less self-reliant or more prudent 
will regard them as also political councils, and will wish 
to call into them men who have earned the confidence of 
their party. The character of the cabinet may be made 
a nice index of the theory of the presidential office, as well 
as of the President’s theory of party government; but the 
one view is, so far as I can see, as constitutional as the 
other. 

One of the greatest of the President’s powers I have not 
yet spoken of at all: his control, which is very absolute, 
of the foreign relations of the nation. The initiative in 
foreign affairs, which the President possesses without any 
restriction whatever, is virtually the power to control them 
absolutely. The President cannot conclude a treaty with 
a‘foreign power without the consent of the Senate, but he 
may guide every step of diplomacy, and to guide diplomacy 
is to determine what treaties must be made, if the faith and 
prestige of the government are to be maintained. He need 
disclose no step of negotiation until it is complete, and 
when in any critical matter it is completed the govern- 


78 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


ment is virtually committed. Whatever its disinclination, 
the Senate may feel itself committed also. 

I have not dwelt upon this power of the President, be¬ 
cause it has been decisively influential in determining the 
character and influence of the office at only two periods in 
our history; at the very first, when the government was 
young and had so to use its incipient force as to win the 
respect of the nations into whose family it had thrust itself, 
and in our own day when the results of the Spanish War, 
the ownership of distant possessions, and many sharp 
struggles for foreign trade make it necessary that we 
should turn our best talents to the task of dealing firmly, 
wisely, and justly with political and commercial rivals. 
The President can never again be the mere domestic 
figure he has been throughout so large a part of our 
history. The nation has risen to the first rank in power 
and resources. The other nations of the world look 
askance upon her, half in envy, half in fear, and wonder 
with a deep anxiety what she will do with her vast 
strength. They receive the frank professions of men 
like Mr. John Hay, whom we wholly trusted, with a grain 
of salt, and doubt what we were sure of, their truthfulness 
and sincerity, suspecting a hidden design under every 
utterance he makes. Our President must always, hence¬ 
forth, be one of the great powers of the world, whether he 
act greatly and wisely or not, and the best statesmen we 
can produce will be needed to fill the office of Secretary of 
State. We have but begun to see the presidential office 
in this light; but it is the light which will more and more 
beat upon it, and more and more determine its character 
and its effect upon the politics of the nation. We can 
never hide our President again as a mere domestic officer. 


THE PRESIDENT OF THE UNITED STATES 


79 


We can never again see him the mere executive he was in 
the thirties and. forties. He must stand always at the 
front of our affairs, and the office will be as big and as 
influential as the man who occupies it. 

How is it possible to sum up the duties and influence of 
such an office in such a system in comnr^hensive terms 
which will cover all its changeful aspects ?\ In the view of 
the makers of the Constitution the President was to be legal 
executive; perhaps the leader of the nation; certainly not 
the leader of the party, at any rate while in office. But 
by the operation of forces inherent in the very nature of 
government he has become all three, \and by inevitable 
consequence the most heavily burdenea officer in the world. 
No other man’s day is so full as his, so full of the responsi¬ 
bilities which tax mind and conscience alike and demand 
an inexhaustible vitality. The mere task of making ap¬ 
pointments to office, which the Constitution imposes upon 
the President, has come near to breaking some of our 
Presidents down, because it is a never-ending task in a civil 
service not yet put upon a professional footing, confused 
with short terms of office, always forming and dissolving. 
And in proportion as the President ventures to use his 
opportunity to lead opinion and act as spokesman of the 
people in affairs the people stand ready to overwhelm him 
by running to him with every question, great and small. 
They are as eager to have him settle a literary question as a 
political; hear him as acquiescently with regard to matters 
of special expert knowledge as with regard to public affairs, 
and call upon him to quiet all troubles by his personal 
intervention. Men of ordinary physique and discretion 
cannot be Presidents and live, if the strain be not somehow 
relieved. We shall be obliged always to be picking our 


80 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

chief magistrates from among wise and prudent athletes, — 
a small class. 

The future development of the presidency, therefore, 
must certainly, one would confidently predict, run along 
such lines as the President’s later relations with his cabi¬ 
net suggest. General Washington, partly out of unaffected 
modesty, no doubt, but also out of the sure practical in¬ 
stinct which he possessed in so unusual a degree, set an 
example which few of his successors seem to have followed 
in any systematic manner. He made constant and intimate 
use of his colleagues in every matter that he handled, seek¬ 
ing their assistance and advice by letter when they were at 
a distance and he could not obtain it in person. It is well 
known to all close students of our history that his greater 
state papers, even those which seem in some peculiar and 
intimate sense his personal utterances, are full of the ideas 
and the very phrases of the men about him whom he most 
trusted. His rough drafts came back to him from Mr. 
Hamilton and Mr. Madison in great part rephrased and 
rewritten, in many passages reconceived and given a new 
color. He thought and acted always by the light of 
counsel, with a will and definite choice of his own, but 
through the instrumentality of other minds as well as his 
own. The duties and responsibilities laid upon the Presi¬ 
dent by the Constitution can be changed only by consti¬ 
tutional amendment, — a thing too difficult to attempt 
except upon some greater necessity than the relief of an 
overburdened office, even though that office be the greatest 
in the land; and it is to be doubted whether the deliberate 
opinion of the country would consent to make of the Presi¬ 
dent a less powerful officer than he is. He can secure his 
own relief without shirking any real responsibility. Appoint- 


THE PRESIDENT OF THE UNITED STATES 


81 


ments, for example, he can, if he will, make more and more 
upon the advice and choice of his executive colleagues; 
every matter of detail not only, but also every minor matter 
of counsel or of general policy, he can more and more 
depend upon his chosen advisers to determine; he need 
reserve for himself only the larger matters of counsel and 
that general oversight of the business of the government 
and of the persons who conduct it which is not possible 
without intimate daily consultations, indeed, but which 
is possible without attempting the intolerable burden of 
direct control. This is, no doubt, the idea of their functions 
which most Presidents have entertained and which most 
Presidents suppose themselves to have acted on; but we 
have reason to believe that most of our Presidents have 
taken their duties too literally and have attempted the 
impossible. But we can safely predict that as the multi J 
tude of the President’s duties increases, as it must with 
the growth and widening activities of the nation itself, the 
incumbents of the great office will more and more come to 
feel that they are administering it in its truest purpose 
and with greatest effect by regarding themselves as less 
and less executive officers and more and more directors of 
affairs and leaders of the nation, — men of counsel and of 
the sort of action that makes for enlightenment. 


IV 


THE HOUSE OF REPRESENTATIVES 

The President of the United States was intended by the 
makers of the Constitution to be a reformed and stand¬ 
ardized king, after the Whig model; and Congress was meant 
to be a reformed and properly regulated parliament. But 
both President and Congress have broken from the mold 
and adapted themselves to circumstances, after a thoroughly 
American fashion, — partly because the king and Parlia¬ 
ment which the convention of 1787 intended to copy, with 
modifications, had no real existence and were therefore 
largely theoretical, but chiefly because, even if they had. 
existed at the moment the copy was made, they could not 
have been fixed in that transitional form by any law that 
the convention could have devised. They were sure to 
undergo rapid alteration in one direction or another, and 
each has taken its own course of change. It would be 
difficult now to believe that the American President and 
the English King, the American Congress and the English 
Parliament, were originally of the same model and inten¬ 
tion if we did not clearly recollect the fact to be so. 

It is the reaction of the several parts of government 
upon one another that gives each part its final form and 
character. It is useless to study any living structure of 
government anatomically, in its separate parts. Its char¬ 
acter and significance come to light, as I have already 
several times insisted, only when we study it as an organic 
82 


THE HOUSE OF REPRESENTATIVES 


83 


whole, living and acting from day to day. Our present 
study must at every stage be a study of the synthesis of 
power in the government on the one hand, and of the peo¬ 
ple’s control of the government on the other; for there 
can be no power which is not synthetic, which does not 
operate with organic unity; and there can be no constitu¬ 
tional government where the' organs of government are 
not constantly under the control of public opinion. We 
shall get our completest understanding of the House of 
Representatives, therefore, if we look at it from two points 
of view: from the point of view of its synthesis with the 
other parts of the Government, and from the point of view 
of its relations to opinion. 

If you were to ask an Englishman to describe the govern¬ 
ment of England, he would of course include the Parliament 
in his description. Indeed, it is likely that he would have 
more to say of the House of Commons than of anything 
else. But if you were to speak to him of ‘The Government,’ 
he would not think of the House of Commons but only of 
the ministers, of what we should call the administration. 
I can make the part played by the House of Representa¬ 
tives in our system clearest by contrasting it with the Eng¬ 
lish House of Commons, and in order to make that con¬ 
trast carry its full significance it is necessary that we should 
bear these two meanings of the word government in mind 
and never confuse them. When I said in a previous lec¬ 
ture that it was not necessary for the full realization of 
constitutional government that representative assemblies 
should become a part of the ‘ Government,’ I meant, of 
course, a part of the administrative organ of government, 
the organ that is looked to for initiative, which makes 
choice of policy and actually controls the life of the nation 


84 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

under the laws; and the significant difference between 
English and American political development is that in 
America Congress has become part of the Government, 
while in England Parliament has not. Parliament is still, 
as it was originally intended to be, the grand assize, or 
session, of the nation, to criticize and control the Govern¬ 
ment. It is not a council to administer it. It does not 
originate its own bills, except in minor matters which seem 
to spring out of public opinion or out of the special cir¬ 
cumstances of particular interests, rather than out of the 
conduct of government. Every legislative proposition of 
capital importance comes to it from the ministers. The 
duties of the ministers are not merely executive: the 
ministers are the Government. They look to Parliament, 
not for commands what to do, but for support in their own 
programs, whether of legal change or of political policy. 

What the House of Commons does, therefore, is not to 
act in any strictly originative way as the law-making body 
of the nation, but to make and unmake Governments, to 
prefer now one, and again another, committee of its lead¬ 
ing members as its guides, not itself leading but choosing 
how it shall be led, insisting that the king make the leaders 
of its own choice the ministers of the crown. It is not the 
Government, but its leaders are. In the supreme act of in¬ 
sisting that they and no others shall be chosen by the 
crown for the executive posts of government it exhausts 
its originative force. Thereafter it follows and criticizes 
as of old. 

Our Congress, on the contrary, does not make or unmake 
our Government. The people do that in their selection 
of a President. And because Congress cannot make or 
unmake the Government at its pleasure, it usually makes 


THE HOUSE OF REPRESENTATIVES 


85 


it a point of pride not to be led by the Government in what 
it regards as its proper and exclusive sphere, the making of 
laws. The making of laws is a very practical matter. It is 
not a mere enactment of opinions into commands. At least, 
it should not be. Neither should it be a means of forcing 
the favorite reforms of some members of the legislative 
body upon the nation, unless there is to be some direct 
and easy way of holding those members responsible for the 
untoward results of their intended reforms, should they 
fail to bring about the happy changes they were meant to 
effect. The practical side of law is its application. The 
Government, therefore, is the only possible body of experts 
with regard to the practicability and necessity of alterations 
in the law, and it is certainly a noteworthy outcome of 
our political development that the houses should have 
rejected the leadership of the Government in legislation. 
They stand alone among the legislatures of the world in 
having done so. It is in this sense that I speak when I 
say that the American Congress has become a part of 
the Government, and that the English Parliament never 
has. Our Congress freely and habitually originates law 
upon every subject upon its own initiative, plays a plan¬ 
ning and devising part in the conduct of government, 
and is in many ways an administrative council acting in 
complete independence of those who are charged with 
actual administration. It even resents suggestions from 
administrative officers as impertinent invasions of its 
independence. It has in a thousand particulars taken 
charge of the Government, without assuming the respon¬ 
sibility of putting its leaders in to conduct it. A sharper 
contrast to the development of the English House of 
Commons, upon which it was modeled, could hardly be 


86 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


imagined. The House of Representatives has moved to 
the opposite pole both of theory and of action. 

The Senate was, no doubt, meant to be a part of the 
Government. In the making of treaties with foreign 
governments and in the difficult and responsible business 
of appointments to office it was deliberately associated 
with the President as an administrative council, by the 
terms of the Constitution. But these are matters of con¬ 
sultation, in which it waits upon the executive. The 
Senate was not given the initiative in respect of them. It 
cannot originate treaties or make, or even suggest, appoint¬ 
ments. It waits upon the initiative of the Government, 
as Parliament does, and has not departed from the original 
model. But in legislative matters proper its attitude is 
the same as the attitude of the House. House and Senate 
alike jealously guard their right to be their own guides in 
legislation, even when the laws they handle are clearly 
administrative in character and deal not with general 
matters but with the duties of the executive departments 
and the details of governmental business. 

The development of our Congress thus affords a singular 
and instructive contradiction between theory and fact, 
which ought to interest practical politicians as much as 
it naturally interests historians. Congress and Parliament 
had the same origin. Our houses were conceived by the 
makers of the Constitution at a period when both Parlia¬ 
ment and Congress were supposed to stand outside Govern¬ 
ment, its mentors and critics, holding aloof from it and 
yet determining its action, at any rate negatively, by 
what they consented to make legal or insisted upon making 
illegal. And yet our houses, developed under a theory of 
checks and balances which seemed intended to preserve that 


THE HOUSE OF REPRESENTATIVES 


87 


theory of separateness, have thrust themselves into the 
business of governing; while Parliament, frankly developed 
in these later years upon the theory of drawing the several 
parts of government together in close synthesis, has re¬ 
mained separate and still waits upon the Government for 
action. 

By natural consequence, the organization of our legis¬ 
lative houses is entirely unlike that of Parliament. Having 
made up their minds to be indeed separate from the execu¬ 
tive, to have a distinct life and an independent initiative, 
and to make themselves part of the Government upon a 
plan of their own, they have been obliged to create a 
suitable organization. The House of Representatives, 
being the more numerous body and in the nature of the 
case harder to organize as an originative and independent 
assembly, has effected the more thorough organization, 
and devotes itself to business with a precision and ease 
of method which the Senate has not attempted. 

The House and Senate are naturally unlike. They 
are different both in constitution and character. They do 
not represent the same things. The House of Representa¬ 
tives is by intention the popular chamber, meant to repre¬ 
sent the people by direct election through an extensive 
suffrage, while the Senate was designed to represent the 
states as political units, as the constituent members of 
the Union. The terms of membership in the two houses, 
moreover, are different. The two chambers were unques¬ 
tionably intended to derive their authority from different 
sources and to speak with different voices in affairs; and 
however much they may have departed from their original 
characters in the changeful processes of our politics, they 
still present many sharp contrasts to one another, and 


88 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


must be described as playing, not the same, but very dis¬ 
tinct and dissimilar roles in affairs. 

Perhaps the contrast between them is in certain respects 
even sharper and clearer now than in the earlier days of 
our history, when the House was smaller and its functions 
simpler. The House once debated; now it does not debate. 
It has not the time. There would be too many debaters, 
and there are too many subjects of debate. It is a busi¬ 
ness body, and it must get its business done. When the 
late Mr. Reed once, upon a well-known occasion, thanked 
God that the House was not a deliberate assembly, there 
was no doubt a dash of half-cynical humor in the remark, 
such as so often gave spice and biting force to what he 
said, but there was the sober earnest of a serious man of 
affairs, too. He knew the vast mass of business the House 
undertook to transact: that it had made itself a great 
organ of direction, and that it would be impossible for 
it to get through its calendars if it were to attempt to 
discuss in open house, instead of in its committee rooms, 
the measures it acted upon. The Senate has retained its 
early rules of procedure without material alteration. It 
is still a place of free and prolonged debate. It will not 
curtail the privilege of its members to say what they please, 
at whatever length. But the senators are comparatively 
few in number; they can afford the indulgence. The 
House cannot. The Senate may remain individualistic, 
atomistic, but the House must be organic, — an efficient 
instrument, not a talkative assembly. 

A numerous body like the House of Representatives 
is naturally and of course unfit for organic, creative action 
through debate. Debate, indeed, is not a creative process. 
It is critical. It does not produce; it tests. A large 


THE HOUSE OF REPRESENTATIVES 


89 


assembly cannot form policies or formulate measures, and 
the House of Representatives is merely a large assembly, 
like any other public meeting in its unfitness for business. 
Like other public meetings, it must send committees out 
to formulate its resolves. It organizes itself, therefore, 
into committees, — not occasional committees, formed 
from time to time, but standing committees permanently 
charged with its business and given every prerogative of 
suggestion and explanation, in order that each piece of 
legislative business may be systematically attended to by 
a body small enough to digest and perfect it. 

For each important subject of legislation there is a 
standing committee. There is, for example, a Committee 
on Appropriations, a Committee on Ways and Means, that 
is, on the sources and objects of taxation, a Committee 
on Banking and Currency, a Committee on Commerce, 
a Committee on Manufactures, a Committee on Agricul¬ 
ture, a Committee on Railways and Canals, a Committee 
on Rivers and Harbors, a Committee on the Merchant 
Marine and Fisheries, a Committee on the Judiciary, a 
Committee on Foreign Affairs, a Committee on Public 
Lands, a Committee on Land Claims, a Committee on War 
Claims, a Committee on Post Offices and Post Roads, a 
Committee on Military Affairs, a Committee on Naval 
Affairs, a Committee on Indian Affairs, a Committee on 
Education, a Committee on Labor, — the business likely 
to be brought to the attention of the House being thor¬ 
oughly, indeed somewhat minutely, classified and the 
committees being some fifty-seven in number. 

Every bill introduced must be sent to a committee. 
It would probably be impossible to think of any legitimate 
subject for legislation upon which a bill could be drawn 


90 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

up for whose consideration no standing committee has 
been provided. If a new subject should turn up, the 
House would no doubt presently create a new committee. 
The thousands of bills annually introduced are promptly 
distributed, therefore; go almost automatically to the 
several committees; and as automatically, it must be 
added, disappear. The measures reported to the House 
are measures which the committees formulate. They 
may find some member’s bill suitable and acceptable, 
and report it substantially unchanged, or they may pull 
it about and alter it, or they may throw it aside altogether 
and frame a measure of their own, or they may do nothing, 
make no report at all. Few bills ever see the light again 
after being referred to a committee. The business of 
the House is what the committees choose to make it. What 
the House of Commons depends upon its committee, the 
Government, to do, the House depends upon its fifty- 
seven committees to do. The private member’s bill has 
a little better chance, indeed, of being debated in the 
Commons than in the House of Representatives. The 
House of Commons does usually set aside one day a week 
for the consideration of private members’ bills, when the 
Government is not pressed for time and does not insist 
upon using every day itself; and those members who are 
fortunate enough to draw first places in the makeup of 
the calendars for those days may have the pleasure of 
getting their proposals debated and voted upon. But 
in the House of Representatives there is only the very 
slender chance of getting the rules suspended, an irregu¬ 
larity which the businesslike chamber has grown very shy 
of permitting. 

The very complexity and bulk of all this machinery is 


THE HOUSE OF REPRESENTATIVES 


91 


itself burdensome to the House. There are now more 
than half as many committees in the House as there are 
members in the Senate. It cannot itself choose so many 
committees; it cannot even follow so many. It therefore 
intrusts every appointment to the Speaker, and, when 
its business gets entangled amongst the multitude of com¬ 
mittees and reports, follows a steering committee, which it 
calls the Committee on Rules. And the power of appoint¬ 
ing the committees, which the House has conferred upon 
its Speaker, makes him the almost autocratic master of 
its actions. 

In all legislative bodies except ours the presiding officer 
has only the powers and functions of a chairman. He is 
separate from parties and is looked to to be punctiliously 
impartial. He moderates and gives order to the course 
of debate, and is expected to administer without personal 
or party bias the accepted rules of its procedure. For 
political guidance all other representative assemblies 
depend on the Government, not upon committees which 
their presiding officer has created. But the processes of 
our parliamentary development have made the Speaker 
of our great House of Representatives and the Speakers 
of our State Legislatures party leaders in whom centres 
the control of all that they do. So far as the House of 
Representatives and its share in the public business is 
concerned, the Speaker is undisputed party leader. 

Every one of the committees of the House the Speaker 
appoints. He not only allows himself to make them up 
with a view to the kind of legislation he wishes to see 
enacted; he is expected to make them up with such a 
view, — is expected to make them up as a party leader 
would. He is, it is true, a good deal hampered in the 


92 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

exercise of a free choice in their makeup by certain well- 
established understandings and precedents, of whose 
breach the older members of the House at any rate would 
be very jealous. Seniority of service has to be respected 
in assigning places on the more important committees, 
and the succession to certain of the chief chairmanships 
is well understood to go by definite rules of individual 
precedence and personal consideration. But it is always 
possible for the Speaker to determine the majority of his 
appointments in such a way as to give him that direct 
and continuing control of the actions of the House which 
he is now expected to exercise as the party leader of the 
majority. Even his own personal views upon particular 
public questions he does not hesitate to enforce in his 
appointments, so that the very majority he represents may 
be prevented from having an opportunity to vote upon 
measures it is known to desire because he has made up the 
committees which would report upon them in accordance 
with his own preferences in the matter. What the commit¬ 
tees do not report the House cannot vote upon. Every 
bill that is introduced is assigned to a committee picked 
out by the Speaker’s order, if there be any doubt about 
its character or reference. It is the Speaker’s decision, 
also, that assigns the reports of the committees to the several 
calendars upon which the business of the House is allotted 
its time for consideration, and he may often choose whether 
the place allotted them shall be favorable or unfavorable, 
shall make it likely or unlikely that they will be reached 
at all. 

Moreover, it has come about that by means of his pre¬ 
rogative of ' recognition ’ the Speaker is permitted to con¬ 
trol debate to a very extraordinary degree. It is common 


THE HOUSE OF REPRESENTATIVES 


93 


parliamentary practice that no one can address an assem¬ 
bly until “ recognized/’ that is, accorded the floor, by the 
presiding officer. The House of Representatives, feeling 
always pressed for time, even with regard to the considera¬ 
tion of the reports of its standing committees, which are 
numerous and amazingly active, restricts debate upon 
those reports within very narrow limits, and generally 
allots the greater part of the brief time allowed to any 
one report to the chairman of the reporting committee. 
Other members may get a few minutes of time allowed 
them by previous arrangement with the committee’s chair¬ 
man, and a list of those who are thus to be given an oppor¬ 
tunity to speak generally lies on the Speaker’s desk. These 
members the Speaker will “ recognize,” but no others, 
though they spring to their feet under his very nose in 
the open space in front of the seats, — unless, indeed, 
they have seen him beforehand and got his permission. 
No member who has not previously arranged the matter, 
either with the chairman of the committee or with the 
Speaker, need rise or seek to catch the Speaker’s eye. And 
in the intervals of calendar business no one whose inten¬ 
tion the Speaker has not been apprised of, unless indeed 
it be the leader on the floor of the one party or the other, 
may expect to be accorded the floor to make a motion. 
The Speaker may, if he choose, determine what proposals 
he will permit the House to hear. 

The Committee on Rules has of recent years had a very 
singular and significant development of functions. Origi¬ 
nally its duty was a very simple one: that of reporting to 
the House at the opening of each of its biennial sessions, 
when a new House assembles and a new organization is 
effected, the body of standing rules under which it was to 


94 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

act; for the House goes through the form of readopting 
its whole body of rules each time it reorganizes after fresh 
congressional elections. From session to session the rules 
were modified, now in one particular, again in another, on 
the recommendation of the committee; and any change 
in the rules at any time proposed is still referred to it for 
consideration and report. But now the committee is 
looked to, besides, for such temporary orders and programs 
of procedure as will enable the House to disentangle its 
business and get at the measures which the country ex¬ 
pects it to dispose of or the needs of the Government make 
it necessary that it should not neglect. The party majority 
is well aware that, if it would keep its credit with the 
constituencies, it must not allow the miscellany of com¬ 
mittee reports on its crowded calendars to stand in the 
way of matters which it is pledged to act upon. It looks 
to the Committee on Rules to sweep aside the ordinary 
routine of procedure whenever necessary, and bring in a 
schedule of action which will enable it to get at the main 
things it is interested in, or at any rate the things the party 
leaders think it most expedient it should dispose of. The 
committee has thus become a very important part of party 
machinery. It consists of five members, the Speaker 
himself, two other representatives of the majority, and 
two representatives of the minority. The majority mem¬ 
bers of course control its action; the representation of the 
minority is hardly more than formal; and the two mem¬ 
bers of the majority associated with the Speaker upon it 
are usually trusted lieutenants upon whom he can count 
for loyal support of his leadership. One self-confident 
Speaker smilingly described the committee as consisting 
of the Speaker and two assistants, — a pleasant way of 


THE HOUSE OF REPRESENTATIVES 


95 


saying that the committee was his instrument to govern 
the House. His direct control of the Committee on Rules 
rounds out his powers as autocrat of the popular chamber. 

And yet the word autocrat has really no place in our 
political vocabulary, if we are to use words of reality and 
not words of extravagance. The extraordinary power of 
the Speaker is not personal. He is in no proper sense of 
the word an autocrat. He is the instrument, as well as the 
leader, of the majority in controlling the processes of the 
House. He is obeyed because the majority chooses to be 
governed thus. The rules are of its own making, and it 
can unmake them when it pleases. It can override the 
Speaker’s decisions, too, and correct its presiding officer 
as every other assembly can. It has simply found it most 
convenient to put itself in the Speaker’s hands, its object 
being efficiency, not debate. 

And yet it is also an exaggeration to say that House 
bills go through as the committees propose practically 
without debate. Some measures it is clearly in the inter¬ 
est of the party no less than of the public to discuss with 
some fullness. Many financial measures in particular are 
debated with a good deal of thoroughness, and most mat¬ 
ters that have already attracted public attention. Not 
everything is left to the operation of the rules, the chances 
of the calendar, and the dictation of the Speaker and his 
two assistants. The Committee on Rules may be counted 
on to arrange for debates upon important bills as well as 
for putting unimportant bills out of the way. 

And standing over all is the party caucus, the outside 
conference of the members of the majority, to whose con¬ 
clusions the Speaker himself is subject, and to which mem¬ 
bers can appeal whenever they think the Speaker too irre- 


96 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

sponsible, too arbitrary, too masterful, too little heedful 
of the opinions prevalent on the floor among the rank and 
file. The caucus is an established and much respected 
piece of party machinery, and what the party has not the 
organization to decide on the floor of the assembly itself 
it decides in this conference outside the House. Members 
who do not wish to be bound by decisions of the caucus can 
refuse to attend it; but that is a very serious breach of 
party discipline and may get the men who venture upon it 
the unpleasant reputation of disloyalty. Members who 
wish to maintain their standing in the party are expected 
to attend; and those who attend are expected to abide 
by the decisions of the conference. It is a thorough-going 
means of maintaining party unity. Caucuses are free 
conferences, where a man may say what he pleases; but 
they are held behind closed doors, and it is usually made 
a matter of honorable punctilio not to speak outside of the 
dissensions their debates may have disclosed. 

It is thus that the House has made itself “efficient.” 
Its ideal is the transaction of business. It is as much 
afraid of becoming a talking shop as Mr. Carlyle could have 
wished it to be. If it must talk, it talks in sections, in its 
committee rooms, not in public on the floor of the chamber 
itself. The committee rooms are private. No one has the 
right to enter them except by express permission of the 
committees themselves. Not infrequently committees do 
hold formal public hearings with regard to certain bills, 
inviting all whose interests are affected to be represented 
and present their views either for or against the proposed 
legislation. But such hearings are recognized as excep¬ 
tional, not of right, and as a rule the public hears nothing 
of the arguments which have induced any committee to 


THE HOUSE OF REPRESENTATIVES 


97 


make its particular recommendations to the House. The 
formal explanations of the chairman of a committee, made 
upon the floor of the House, contain few of the elements 
of contested opinion which undoubtedly showed themselves 
plainly enough in the private conferences of the committee. 

For each committee is a miniature House. The minority 
is accorded representation upon it in proportion to its 
numerical strength in the House. In every committee, 
therefore, there are men representing both party views, and 
it sometimes happens that the arguments of the minority 
members are very influential in shaping reports made upon 
measures concerning which no sharp party lines have been 
drawn. With regard to matters upon which the majority 
is known to have taken a definite position before the 
constituencies the majority members of a committee will 
of course insist upon having their own way. They are apt 
to be in frequent consultation with the Speaker about 
them. But with regard to measures on which no party 
issue has been made up they are willing on occasion to 
give a good deal of weight to the opinions of their minority 
colleagues. There is a very easy and amicable relation 
between majority and minority in the committees, and it 
will often happen that in committees which have to deal 
with highly technical matters, like manufactures or bank¬ 
ing or naval construction or the regulation of judicial pro¬ 
cedure, or with matters involved in precedent and to be 
understood only in the light of somewhat extended and 
intimate experience, like foreign affairs, members of the 
minority of long service in the House and of long familiarity 
with the subject-matter under discussion will in fact in 
no small degree guide and dominate the committees to 
which they have been assigned. Business is more like 


98 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


business, because less formal and less touched with party 
feeling, in the committee rooms than on the floor of the 
House. 

The minority has its own party organization like that of 
the majority: its formally chosen leader for the floor, its 
caucus to secure common counsel. It is, indeed, usually 
less thoroughly disciplined than the majority, because it 
is in opposition, not in power, and can afford to allow its 
members freer play in choosing what they shall individually 
do and say. But its organization suffices to draw its 
forces together for common action when any matter of 
real party significance comes to the surface and the coun¬ 
try expects it to put itself on record; and it is ready, 
at very short notice, to turn itself into an organization 
as complete and powerful as that of the majority, should 
the elections favor it and its leader become Speaker. 

All lines of analysis come back to the Speaker, whether 
you speak of the organization or of the action and political 
power of the House. Such an organization, so system¬ 
atized and so concentrated, has of course made the House of 
Representatives one of the most powerful pieces of our 
whole governmental machinery, and its Speaker, in whom 
its power is centered and summed up, has come to be 
regarded as the greatest figure in our complex system, next 
to the President himself. The whole powerful machinery 
of the great popular chamber is at his disposal, and all the 
country knows how effectually he can use it. Whatever 
may be the influence and importance of the Senate, its 
energies are not centered in any one man. There is no 
senator who sums up in himself the power of a great organ 
of government. The leaders of the Senate deal in all 
counsel with the other chamber with regard to legislative 


THE HOUSE OF REPRESENTATIVES 99 

business with this single leader, this impersonation of the 
House. So do also the President and the members of the 
cabinet. As national leader of his party, the President 
must reckon always with the guide and master of the 
House, without whose approval and consent it is practi¬ 
cally impossible to get any legislative measure adopted. 
Measures which are to prosper must have his countenance 
and support. Members of the cabinet must study his 
views and purposes, if they are to obtain the appropriations 
they desire or to see measures brought to a happy and 
successful issue which they deem necessary to the admin¬ 
istration of their departments. One might sum up the 
active elements of our government as consisting of the 
President, with all his sweep of powers; the Speaker of 
the House, with all that he represents as spokesman of the 
party majority in the popular chamber, with its singularly 
effective machinery at his disposal; and the talkative, 
debating Senate, guided no doubt by a few influential and 
trusted members, but a council, not an organization. 

The House of Commons makes and unmakes govern¬ 
ments. The House of Representatives makes and un¬ 
makes Speakers. As the originative capacity of the House 
of Commons is exhausted when it has produced a ministry, 
so the originative force of the House of Representatives is 
exhausted when it has made a Speaker. Neither does 
anything else, as a whole. For the rest, they follow and 
criticize: follow fifty-seven committees or one committee; 
criticize the Speaker and his committees or the ministers 
who have risen to a place of rule. A numerous assembly 
cannot do more. 

In producing a single committee and securing for it the 
right to conduct the government, the House of Commons 


100 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


has, it must be admitted, done a more effective thing than 
the House of Representatives has done in producing an 
omnipotent Speaker and fifty-seven committees, and has 
obtained for itself much greater power. There is reason 
to believe that the House of Representatives sometimes 
finds its numerous committees a burden, and certainly they 
do not all serve it equally well. The average membership 
of its standing committees is twelve, so that the total num¬ 
ber of committee places to be filled is six hundred and 
eighty-five. The total membership of the House is only 
three hundred and fifty-seven. There are, therefore, about 
two committee places for every member of the House. 
The appointments are not equally distributed, but every 
member is given some place. New members and members 
little thought of can be disposed of on committees which 
have little or nothing to do or whose work is light and 
formal: for the House keeps many committees on its list 
for which it has ceased to have any real or important use; 
but with any sort of equitable distribution of the Speaker’s 
appointments it must always happen that many committees 
with very important work to do are made up of men of only 
average capacity and little experience in public affairs. 
The real leaders and masters of business are few and are 
soon disposed of by assignment to the two or three chief 
committees; and to assign a man to a committee is prac¬ 
tically to silence him with regard to every matter of 
legislation except those referred to his committee. A 
Speaker must have a particularly clear vision of what the 
most important questions to come before that particular 
congress are, to be able to distribute the best men at his 
disposal in the best way and give the House effective 
service where it will most need it. The membership of 


THE HOUSE OF REPRESENTATIVES 


101 


most committees must be drawn from the rank and file. 
The House can use its best men for only a few things, and 
must make shift for the rest with the mediocre. 

Standing alone, therefore, and undertaking to be suffi¬ 
cient unto itself in respect of everything it is authorized by 
the Constitution to handle, the House of Representatives 
is a much less powerful and influential body than it would 
have been, could it have had the luck of the House of Com¬ 
mons and got control of the Government itself. Inde¬ 
pendence in any organization is isolation; and isolation 
is weakness. You have no controlling authority; you 
have only the right to sell your favors, to exchange con¬ 
cession for concession, to come to an agreement by some 
compromise of views. You can never have more than a 
piece of your own way. It is, of course, a more important 
and influential thing to superintend a Government with 
supreme authority, as the House of Commons does, than 
to stand separate in a complex organization, play only an 
individual part, be only a piece of a balanced mechanism, 
as the House of Representatives is. It is an interesting 
conclusion in political dynamics that a body which stands 
jealously apart and avoids partnership of any intimate sort 
in the conduct of affairs, declines an opportunity to rule and 
gets only an opportunity to bargain. If it is strong enough 
to rule, partnership will bring it supremacy; if it is not 
strong enough to rule, it can make little out of compromises 
and bargains. It is hardly to be expected that, as the 
affairs of the nation grow more complex and interesting 
and difficult and require nicer adjustments of governmental 
power for their management, the House of Representatives 
will remain content with its present splendid isolation. 

We are in love with efficiency and, as a practical nation, 


102 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


greatly admire the complete and thorough organization of 
the House, its preference for action and its impatience of 
talk: but if every part of our political machinery is to be 
organized for “ business,” where are counsel and criticism 
to come in? We never stood more in need of them than 
we do now. If our present representative assemblies are 
to be for action, we must let them go over in our thoughts 
to become outlying, detached parts of the executive, and 
must invent other assemblies for discussion. For public 
business cannot be transacted in a truly constitutional 
spirit without searching and constant discussion, unless 
we are mistaken in our analysis of constitutional govern¬ 
ment as government which is conducted in accordance 
with a clear understanding between those who administer 
it and those who obey it, — an understanding not only 
established by fundamental law, by charters and constitu¬ 
tions, but also accommodated to each day and generation 
by the criticisms and behests of representative assemblies 
whose business shall not be the actual discharge of govern¬ 
mental functions, but the maintenance of that nice balance 
between opinion and power which is of the very essence of 
the whole matter. 

There is discussion and discussion. I suppose that we 
have come to think debate less necessary in our legislative 
assemblies than it may once have been because we have 
allowed ourselves to fancy that the action of government 
was sufficiently discussed and nicely enough squared with 
opinion by the news columns and editorials of our news¬ 
papers. But even if the chief newspapers were not owned 
by special interests; even if their utterances really spoke 
the general opinion of the communities in which they are 
printed, as very few of them now do, their discussion of 


THE HOUSE OF REPRESENTATIVES 


103 


affairs would not be of the kind that is necessary for the 
maintenance of constitutional government. There are 
many things to be said about the newspapers which will 
make this at once evident. For one thing, few men outside 
the big cities read more than one newspaper. Few men, 
therefore, ever get put before them in the newspapers 
they read more than one side of any question; and they 
generally decide for themselves beforehand which side that 
shall be, by their choice of a newspaper. But far more 
important than that is the little recognized fact that no 
number of separate discussions of a question, no matter 
how assembled, no matter from how many different points 
of view, from how many different papers or different 
sections of the country, constitute such a comparison of 
views as a responsible representative assembly can insti¬ 
tute in its debates. 

Discussions which are to lead to action must be com¬ 
bined, compounded, made up out of many elements, or 
else out of a few, by a process which can be thorough and 
trustworthy only when these several elements are, so to 
say, brought personally face to face, as living, contending 
forces embodied in men authorized to be the spokesmen of 
voters and speaking with a constant sense of being held 
responsible for what they say. Common counsel is not 
jumbled counsel. There is often common counsel in the 
committee rooms of the House, but there is never common 
counsel on the floor of the House itself. It goes without 
saying that the combined acts of a session are not a prod¬ 
uct of common counsel. They have been produced by 
a thousand agencies, not threshed out by one, and they 
have not been threshed out in the presence of the country, 
but behind closed doors. 


104 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

It may sound a very subtle matter, but it is in fact in¬ 
tensely practical, and is worth looking into. It is because 
we do not look into it or understand it, though it lies at 
the very heart of our whole practice of government, that 
we sometimes allow ourselves to assume that the “initia¬ 
tive” and the “referendum,” now so much talked of and 
so imperfectly understood, are a more thorough means of 
getting at public opinion than the processes of our repre¬ 
sentative assemblies. Many a radical program may get 
what will seem to be almost general approval if you listen 
only to those who know that they will not have to handle 
the perilous matter of action and to those who have merely 
formed an independent, that is, an isolated opinion, and 
have not entered into common counsel; but you will seldom 
find a deliberative assembly acting half so radically as its 
several members professed themselves ready to act before 
they came together into one place and talked the matter 
over and contrived statutes. It is not that they lose heart 
or prove unfaithful to the promises made on the stump. 
They have really for the first time laid their minds alongside 
other minds of different views, of different experience, of 
different prepossessions. They have seen the men with 
whom they differ, face to face, and have come to understand 
how honestly and with what force of genuine character 
and disinterested conviction, or with what convincing 
array of practical arguments opposite views may be held. 
They have learned more than any one man could before¬ 
hand have known. Common counsel is not aggregate 
counsel. It is not a sum in addition, counting heads. It 
is compounded out of many views in actual contact; is a 
living thing made out of the vital substance of many minds, 
many personalities, many experiences; and it can be made 


THE HOUSE OF REPRESENTATIVES 


105 


I up only by the vital contacts of actual conference, only in 
face to face debate, only by word of mouth and the direct 
clash of mind with mind. 

No doubt, as I have said, there is oftentimes genuine 
common counsel in the committee rooms of the House of 
Representatives; but the committee rooms are private 
and are so many that it would only confuse the nation to 
publish debates out of the whole body of them. One could 
not make his way through a Congressional Record like that. 
And yet the actual Congressional Record is disappointing, 
because it seems to lack reality. The speeches it contains 
too often seem the mere speeches of parade; merely the 
formal dress array of arguments, so conned and formalized 
as not to seem like vital discussion at all, but only like 
things meant to have their effect by way of party justifica¬ 
tion or to make impressive reading for distant constituen¬ 
cies. In brief, the debate is not real hand to hand debate 
at all; and the people, finding things done they do not 
just know why or how in their legislative assemblies, 
indulge suspicions which deeply disturb them and make 
them unjust critics of the whole representative system. 
The process of legislation is not open and frank and obvious 
enough. Too much is hidden away in committee rooms. 
And anything hidden is suspected, no matter how honest 
it may be. The machinery of action is too complex to be 
easily understood. There are more excuses for suspecting 
covert influences than chances to comprehend what really 
takes place, — most of it in fact excellent, honest, practical, 
efficient enough. 

It is very difficult for public opinion to judge such a body 
as the House of Representatives justly, because it is very 
difficult for it to judge it intelligently. If it cannot under- 


106 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

stand it, it will certainly be dissatisfied with it. Moreover, 
it is very difficult for a body which compounds its legisla¬ 
tion by so miscellaneous a process as that of committees 
to bring itself into effective cooperation with the other parts 
of the government, — and synthesis, not antagonism, is 
the whole art of government, the whole art of power. 
I cannot imagine power as a thing negative, and not 
positive. 

The matter is perfectly illustrated by the relations be¬ 
tween the House and the Senate. They are not, it must be 
said, upon terms of very intimate and cordial cooperation. 
There is a subtle jealousy and antagonism between them, 
due to their desire to maintain their separateness and inde¬ 
pendence inviolate and be each a power to itself. When 
they come to a sharp difference of opinion upon any sub¬ 
ject of legislation which really interests the people the 
advantage is sometimes with the one, sometimes with the 
other. The Senate has the advantage of being a public 
council, not a mere congeries of committees, and of setting 
forth its reasons in thorough debate; the House has the 
advantage of being regarded as the more truly representa¬ 
tive chamber and of being more directly in touch with the 
general sentiment of the country. The House has also the 
advantage of being under thorough discipline and standing 
ready to do what it is told to do promptly when it becomes 
necessary to manoeuvre for position in such a contest of 
wills. But what happens at last is proof of nothing, how¬ 
ever the contest may end: it does not prove the popular 
sympathy of the House, if it win, nor the better counsel 
of the Senate, if it win. A conference committee is 
appointed by each house towards the very end of the 
session, the two committees meet and fight the differences 


THE HOUSE OF REPRESENTATIVES 


107 


of the houses out while business is hurrying to adjourn¬ 
ment and a recess; and just as the session closes the two 
bodies hastily pass, without debate, a conference report 
which is a mere patchwork of compromises; or else reject 
the compromise and let the whole matter fall. There is 
no common leadership even when the majorities of the two 
houses are of the same political party. It is at best a 
haphazard method of compounding legislation, liable to 
suffer many singular accidents, and impossible for a busy 
people to understand when they occasionally look on 
with unwonted attention. 

Such complications and subdivisions of machinery in 
the active and originative organs of the government result 
in its being in a very real sense leaderless. In the last lec¬ 
ture I spoke of the President as leader of his party and of 
the nation; but, though he clearly exercises such leadership, 
and exercises it with great effectiveness when he has the 
personal force for any originative role at all, he cannot be 
said to be the guide and leader of the Government as a 
whole. Our Government consists in part, as I have ex¬ 
plained, of the House and Senate. It is in that respect 
contrasted with all other governments. And in each part 
of our subdivided Government there is a distinct arrange¬ 
ment with regard to leadership. The Senate submits to 
the guidance of a small group of senators, very jealous of 
the independence of the body they control. The House 
is under the command of its Speaker. The executive is 
in the hands of the President, whom the houses regard, 
when thinking of their own powers, as an outsider, and 
whose advice they are apt to look upon as the advice of a 
rival rather than of a colleague. 

I suppose that when matters of legislation are under dis- 


108 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


cussion the country is apt to think of the Speaker as the 
chief figure in Washington rather than the President, — 
at any rate in all ordinary seasons and under all ordinary 
Presidents. And yet, because he has the ear of the whole 
nation and is undoubtedly its chosen spokesman and repre¬ 
sentative, the President may place the House at a great 
disadvantage if he choose to appeal to the nation. It is 
this that makes the great difference between the Speaker 
and the President, whose figures you might come to regard 
as very nearly equal if you looked no farther than Washing¬ 
ton city itself. The Speaker of the House is not in the 
habit of appealing to the nation. He would feel himself 
ridiculous if he did. It would probably make an un¬ 
pleasant impression were the executive officer of one of 
the houses of Congress, himself merely the representative 
of a single constituency, to turn to the nation by some open 
appeal of speech or argument to decide between him and 
the President. It is a point of good taste with him, as 
well as of good politics, to say little, say that little in enig¬ 
matic phrases, and confine himself to his proper role of 
management. But the President may turn to the country 
when he will, with whatever arguments, whatever disclo¬ 
sures of plan, whatever explanations he pleases. Every¬ 
body will read what he says, particularly if there be any 
smack of contest in the air, while few will read what is 
said in the House where no one speaks for the whole body 
or for the nation; and if the nation happens to agree with 
the President, if he can win it to his view, the leadership 
is his whether the houses relish it or not. They are at a 
disadvantage and will probably have to yield. 

The true significance of the matter, for any student of 
government who wishes to understand the life rather than 


THE HOUSE OF REPRESENTATIVES 


109 


the mere theory of what he studies, is that the greatest 
power lies with that part of the government which is in 
mqst direct communication with the nation itself, — as one 
would naturally expect under any constitutional system. 
The light this evident fact throws upon the House of 
Representatives is this: that it has greatly weakened 
itself as an organ of public opinion by yielding to the need 
it has felt itself under to play the role of an independent 
part of the government. In its effort to make itself an 
instrument of business, to perform its function of legisla¬ 
tion without assistance or suggestion, to formulate its 
own bills, digest its own measures, originate its own poli¬ 
cies, it has in effect silenced itself. The nation does not 
look to it for counsel; does not expect to understand its 
own affairs any better because of anything said or anything 
done in the House; has come to regard it as what it is, a 
piece of effective law-making machinery, but not a delibera¬ 
tive assembly in whose debates it may expect to find public 
questions clarified, disputed matters settled. The House 
seems to have missed what its average capacity and its 
undoubted integrity entitle it to, the chief privilege of 
giving counsel to the nation, the right to be its principal 
spokesman in affairs. 

It is thus always a vital synthesis of parts that eludes 
us as we examine our constitutional system with its 
singular Newtonian equipoise of parts. But it is a study 
of persons and of forces of opinion, as in any other govern¬ 
ment. It is the actual temper and disposition of the two 
diverse chambers with which he deals that the President 
must study if he is to bring his party, as well as the 
opinion of the nation, to any program or measure of his 
own. The Senate and House must study one another and 


110 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


play a very difficult game of accommodation to maintain 
any workable agreement or cooperation in legislation. 
They are of different tempers and traditions; they are 
jealous of each other and yet are constrained to agree. 
No man can lay down any rule as to what will happen 
amidst so many and so powerful forces, which must 
cooperate and yet are independent of one another. Time 
and circumstance and wise management alone can secure 
union and energy among them. There is but one common 
solvent. The law of their union is public opinion. That 
and that alone can draw them together. That part of the 
government, therefore, which has the most direct access 
to opinion has the best chance of leadership and mastery; 
and at present that part is the President. 

Each part of the government loses force and prestige 
in proportion as it ceases to give, and to give publicly, con¬ 
clusive reasons for what it is doing and for what it is declin¬ 
ing to do. The country in the long run is more interested 
to know that the right thing has been done and that it has 
been done wisely than to know merely that something has 
been done, hastily devised though well intended. There are 
seasons, it is true, when opinion, unduly excited, prefers 
action to counsel, but those are exceptional seasons among 
peoples trained to the thoughtfulness and self-control of 
constitutional action. Open counsel is of the essence of 
power, if the country’s confidence is to be retained for 
any length of time. The most serious comment, therefore, 
upon the development of the House of Representatives is 
that in making itself an active part of the Government and 
falling into the silence of an effective, businesslike board 
of directors, it has forfeited the much higher office of gath¬ 
ering the common counsel of the nation and wielding the 


THE HOUSE OF REPRESENTATIVES 


111 


tremendous, the governing and sovereign, power of criti¬ 
cism. Criticism can make and unmake governments, but 
the conferences of committee rooms cannot. If the House 
must originate its own business and must be independent 
in action, it cannot be the voice of the nation. 


V 


THE SENATE 

It is very difficult to form a just estimate of the Senate 
of the United States. No body has been more discussed; 
no body has been more misunderstood and traduced. 
There was a time when we were lavish in spending our 
praises upon it. We joined with our foreign critics and 
appreciators in speaking of the Senate as one of the most 
admirable, as it is certainly one of the most original, of 
our political institutions. In our own day we have been 
equally lavish of hostile criticism. We have suspected it 
of every malign purpose, fixed every unhandsome motive 
upon it, and at times almost cast it out of our confidence 
altogether. 

" The fact is that it is possible in your thought to make 
almost anything you please out of the Senate. It is a 
body variously compounded, made many-sided by contain¬ 
ing many elements, and a critic may concentrate his atten¬ 
tion upon one element at a time if he chooses, make the 
most of what is good and put the rest out of sight, or make 
more than the most of what is bad and ignore everything 
that does not chime with his thesis of evil. The Senate 
has, in fact, many contrasted characteristics, shows many 
faces, lends itself easily to no confident generalization. It 
differs very radically from the House of Representatives. 
The House is an organic unit; it has been at great pains 
to make itself so, and to become a working body under a 
112 


THE SENATE 


113 


single unifying discipline; while the Senate is not so much 
an organization as a body of individuals, retaining with 
singularly little modification the character it was originally 
intended to have. 

As I have already said in a previous lecture, it is impos¬ 
sible to characterize the United States in any single general¬ 
ization; and for that very reason it is impossible to sum 
up the Senate in any single phrase or summary description. 
For the Senate is as various as the country it represents. 
It represents the country, not the people: the country in 
its many diverse sections, not the population of the coun¬ 
try, which tends to become uniform where it is concen¬ 
trated. 

Most of the leading figures among the active public men 
of the country are now to be found in the Senate, not in the 
House. This was not formerly the case. Before the House 
became an effective, non-debating organ of business, it 
shared quite equally with the Senate the leading politi¬ 
cians of the country; but it has not been so of recent years. 
Organization swallows men up, debate individualizes 
them, and men of strong character and active minds 
always prefer the position in which they will be freest to 
speak and act for themselves. The Senate has always been 
a favorite goal of ambition for our public men, but it has 
become more and more the place of their preference as the 
House has more and more surrendered to it the function 
of public counsel. 

Of course, there are fewer senators than members of the 
House, and it is a more conspicuous thing to be one of a 
body of ninety than to be one of a body of three hundred 
and fifty-seven. Moreover, the tenure of a senator of the 
United States is three times as long as the tenure of a 



114 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


member of the House of Representatives, and every mem¬ 
ber of the Senate must feel it a considerable advantage that 
six years instead of two are given him in which to make 
his impression on the country. There is time to find out 
what he is about and to master a difficult task. Both the 
smaller membership of the Senate and the longer term of 
its members contribute to individualize the men who com¬ 
pose it and to give them an advantage and importance 
which members of the House do not often have, unless they 
rise to one of the three or four places of real power which 
crown the committee organization of the representative 
chamber. 

And yet these are not the radical and fundamental differ¬ 
ences between the House and the Senate. Size and tenure 
are after all matters of detail. They count, and count a 
good deal, in giving the Senate its character, but they do 
not go to the root of the difference between the two houses. 
What gives the Senate its real character and significance 
as? an organ of constitutional government is the fact that 
it does not represent population, but regions of the coun¬ 
try, the political units into which it has, by our singular 
constitutional process, been cut up. The Senate, therefore, 
represents the variety of the nation as the House does not. 
It does not draw its membership chiefly from those parts of 
the country where the population is most dense, but draws 
it in equal parts from every state and section. 

It seems to me that those critics of our government — 
they are, I believe, without exception domestic critics — 
who criticize the principle upon which the Senate is made 
up on the ground that states having little wealth and 
small population have as many representatives in the 
Senate as the richest and most populous states of the 



THE SENATE 


115 


Union, the newest and least developed as many as the old¬ 
est and most highly organized, entirely mistake the stand¬ 
ard by which the Senate should be judged as an instru¬ 
mentality of constitutional government in a system like 
ours. 

They are entirely wrong in assuming, for one thing, that 
the newer, weaker, or more sparsely populated parts of the 
country have less of an economic stake in its general policy 
and development than the older states and those which 
have had a great industrial development. Their stake may 
not be equal in dollars and cents, — that, of course, — 1 
but it is probably greater in all that concerns opportunity 
and the chances of life. There is a sense in which the 
interest of the poor man in the prosperity of the country 
is greater than that of the rich man: he has no reserve, 
and his very life may depend upon it. The very life of 
an undeveloped community may depend upon what will 
cause a richer community mere temporary inconvenience 
or negligible distress. And yet even this, vital as it is to 
the validity of the usual criticisms of the make-up and char¬ 
acter of the Senate, is in fact neither here nor there as com¬ 
pared with the essential point of the matter. 

Neither is it of material consequence that some of the 
states represented in the Senate are not real communities, 
with distinct historical characteristics, a distinct social 
and economic character of their own, as most of the older 
states are. It is true that you have only to look at a map 
of the United States to see at a glance that many of the 
newer states of the Union are purely arbitrary creations, 
their boundaries established by the theodolite of the pub¬ 
lic surveyor. They are squares on a great checker-board, 
elaborated into rectangular sections on broad plains where 




116 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


there are no natural boundaries to divide region from 
region; and these artificial squares, which Congress first 
laid off as the areas of territories, it has one by one con¬ 
certed into states, each of which sends two members to 
the Senate, just as Virginia and Massachusetts do, the 
history of whose boundaries and organization is a long 
history of constitutional struggle which gave them from 
the very outset characters and purposes of their own. 
Many a square western state, laid out by the public sur¬ 
veyor, has now a more homogeneous population and a 
more discernible individuality than some of her eastern 
sisters into whom a miscellaneous immigration has poured 
social chaos. And their very separateness of political 
organization insures them a development of their own. 

Yet even that is not of material consequence. Even if 
^very state of the Union were of artificial creation, not a 
natural community, but merely a region marked off to 
ipake a congressional district for elections to the Senate, 
the principle I am just now interested in pointing out as 
of capital importance in a system and country like ours 
would not be altered or affected. That is the principle 
that regions must be represented, irrespective of popula¬ 
tion, in a country physically as various as ours and there¬ 
fore certain to exhibit a very great variety of social and 
economic and even political conditions. It is of the utmost 
importance that its parts as well as its people should be 
represented; and there can be no doubt in the mind of 
any one who really sees the Senate of the United States as 
it is that it represents the country, as distinct from the 
accumulated populations of the country, much more fully 
and much more truly than the House of Representatives 
does. The East and North are regions of concentration, 


THE SENATE 


117 


regions of teeming population and highly developed in¬ 
dustry, — the regions north of Mason and Dixon’s Line and 
east of the Mississippi. It will not long be so. Cities are 
springing up in the South and beyond the Mississippi in 
the Middle West, on the Pacific coast, and upon the great 
lines of traffic that connect coast with coast, which will 
presently rival the cities of the East and of the old North¬ 
west in magnitude and importance; and many a region 
hitherto but sparsely peopled is thickening apace with 
crowding settlers and an accumulating commerce. But 
for the present the South and West, if I may use those 
terms in the large, are not the centres of wealth or of 
population, and have a character unlike that of the marts 
of trade and industry; and there are more senators from 
the South and West than from the North and East. The 
House of Representatives tends more and more, with the 
concentration of population in certain regions, to represent 
particular interests and points of view, to be less catholic 
and more and more specialized in its view of national 
affairs. It represents chiefly the East and North. The 
Senate is its indispensable offset, and speaks always in its 
make-up of the size, the variety, the heterogeneity, the 
range and breadth of the country, which no community 
or group of communities can adequately represent. It 
cannot be represented by one sample or by a few samples; 
it can be represented only by many, — as many as it has 
parts. 

It thus happens that there are in the Senate more repre¬ 
sentatives of the individual parts of the country than of 
the characteristic parts of it. At least that is true if I am 
right in assuming that the characteristic parts of America 
are those parts which are most highly developed, where 



118 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

population teems and great communities are quick with 
industry, where our life most displays its energy, its ardor 
of enterprise, its genius for material achievement. Other 
icommunities are no doubt more truly characteristic of 
America as she has been known in the processes of her 
making. Only modern visitors, visitors of our own day, 
have known her as industrial America, the leader of the 
world in all the processes, whether material or economic, 
which produce wealth and accumulate power, the land of 
manufactures and of vast cities. The older America is still 
represented by the South and West with their simpler life, 
their more scattered people, their fields of grain, their mines 
of metal, their little towns, their easier pace of intercourse, 
their work that does not crowd out companionship. 

Certainly it is easier to represent a northern or eastern 
Constituency in Congress than to represent a southern or 
western constituency. There is more individuality, man 
for man, in the West and South than in the East and 
North. How constantly we repeat each other’s opinions 
and bow to each other’s influence; how seldom we take 
leave to be ourselves and utter thoughts of our own genuine 
coinage, in regions where we are parts of a packed and 
thronging multitude! Rubbing shoulders every day with 
thousands of your fellow-citizens, putting your mind into 
contact with other minds at every encounter, you slowly 
have the individuality rubbed out of you by mere attrition 
and are worn down to a common pattern. Your opinion 
is everybody’s opinion; my information is the common 
information current everywhere: your mind, like mine, 
like our neighbor’s, is assaulted day and night with the 
multitudinous voices of clamorous talk, and a common 
atmosphere gives us a common habit and attitude. Only 


THE SENATE 


119 


very unusual men can remain individual under such pressure 
of uniformity. It is uncomfortable to be singular in any 
habit, whether of action or of thought, where so many look 
on and make comment. Conformity is the easiest, plain¬ 
est, safest way, and countless multitudes there be that 
walk in it. “ Always be of the opinion of the person with 
whom you are conversing/’ was Dean Swift’s advice to all 
who would win the repute of being sensible persons. And 
in crowded places of enterprise it is a very valuable asset 
of success to be thus reputed a man of sense. To conform 
opens the ways to promotion. It is the common and 
very uncomfortable fortune of men of original views to be 
greeted at every turn with a stare and a shrug of the 
shoulders, as Mr. Bagehot has said, and to be followed with 
the comment, “An excellent young man, sir, but unsafe, 
quite unsafe.” Mr. Bagehot must certainly have known: 
he was himself most singularly original and seemed always 
to have had the freshness of youth about him. 

The variety of the country, therefore, is better repre¬ 
sented in the Senate than in the House, its variety of 
opinion as well as its variety of social and economic make¬ 
up, — its variety of opinion because its variety of social 
and economic make-up. There are more opinions because 
there is more individuality in the uncrowded South and 
West than in the crowded East and North. Each mind 
is there apt to have a greater, freer space about it, space 
in which to look around and form impressions of its own. 
No country ought ever to be judged from its seething 
centres. To be truly known, it must be known where it 
is quiet, in places where impulse is not instant, hot, | 
insistent; where you can at least presume that opinion 
will next week be what it is to-day. 


120 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


In those hot centres of trade and industry, where a 
man’s business grips him like an unrelaxing hand of iron 
from morning to night and lies heavily upon him even 
while he sleeps, few men can be said to have any opinions 
at all. They may bury their heads for a few minutes in 
the morning paper at breakfast or as they hurry to their 
offices, may dwell with dull attention upon the afternoon 
paper as they go wearily home again or drowse after dinner; 
but what they get out of the papers they cannot call their 
opinions. They are not opinions, but merely a miscellany 
of mental reactions, never assorted, never digested, never 
made up into anything than can for the moment compare 
in reality and vitality with the energetic conceptions they 
put to use in their business. In small towns, in rural 
country-sides, around comfortable stoves in cross-road 
stores, wherever business shows as many intervals as 
transactions, where seasons of leisure alternate with seasons 
of activity, where large undertakings wait on slow, unhast¬ 
ing nature, where men are neighbors and know each other’s 
quality, where politics is dwelt upon in slow talk with 
all the leisure and fond elaboration usually bestowed on 
gossip, where discussion is as constant a pastime as checkers, 
opinion is made up with an individual flavor and wears 
all the variety of individual points of view. And the 
Senate has more members from such regions than from 
those where opinion is made up by conglomeration and 
upon the moment, out of newspapers and not out of the 
contributions of individual minds. It represents the popu¬ 
lation of the country, not in its numbers, but in its variety; 
and it is of the utmost consequence that the country’s 
variety should be represented as thoroughly as its mass. 

The processes by which we have made states out of 


THE SENATE 


121 


the territories of the United States have been seriously 
impaired once and again by mistakes which are the more 
to be deplored because they are apparently irremediable. 
Once make a state and you cannot unmake it. Once or 
twice Congress has admitted to the Union, in equal partner¬ 
ship with the older states, territories which not only did 
not have population enough to justify their admission, 
but which had no real prospect of gaining a population 
large and various enough to develop into compact and im¬ 
portant communities with a character and purpose of their 
own, — communities already sufficiently represented in 
kind in the counsels of the country, and not constituted 
in a way which gave promise of political vitality. But 
such mistakes have been few, and many a state which at 
first seemed a premature and unjustifiable creation has 
been speedily lifted to a plane of real dignity and impor¬ 
tance by the abounding forces of our national growth. 
It has been hard to make mistakes where populations 
throng forward so steadily and in such wholesome masses 
to occupy the free spaces of the continent. We have 
had to reclaim deserts to accommodate their multitude. 
And as each new-fledged state has come in, its two spokes¬ 
men in the Senate have added its voice to our counsels 
in a place where voices can still be individually heard. 

The fact that the Senate has kept its original rules of 
debate and procedure substantially unchanged, is very 
significant. It is a place of individual voices. The sup¬ 
pression of any single voice would radically change its 
constitutional character; and, its character being changed, 
the individual voices of the country's several regions being 
silenced, there would no longer be any sufficient reason 
for its present constitution. If it were to follow the ex- 



122 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


ample of the House and make itself chiefly an efficient 
organ for the transaction of business, the critics who con¬ 
demn it because it is unequally compounded upon any 
balanced reckoning of the wealth and numbers of the coun¬ 
try would have not a little tenable ground to stand upon. 

Another circumstance gives a senator of the United 
States an individual importance which the average member 
of the House of Representatives lacks. He comes into 
contact with a much greater variety of the public business. 
He is not a mere legislator. He is directly associated with 
the President in some of the most delicate and important 
functions of government. He is a member of a great 
executive council. He is brought into very confidential 
relations with the President in matters which oftentimes 
call for not a little discretion and for very prudent judg¬ 
ments,— judgments not to be drawn from public opinion, 
but only from official facts privately considered, not spoken 
of out of doors, belonging to intimate counsel and not to 
public debate. There is no better cure for thinking dis¬ 
paragingly of the Senate than a conference with men who 
belong to it, to find how various, how precise, how com¬ 
prehensive their information about the affairs of the nation 
is; and to find, what is even more important, how fair, 
how discreet, how regardful of public interest they are in 
the opinions which they will express in your private ear. 

The most reticent men in Washington are the members 
of the Supreme Court of the United States. It would of 
course be a great breach of professional honor on the part 
of any member of that Court to discuss any question in¬ 
volved in a pending case which the Court was considering 
or was about to consider; but his obligation of reticence 
goes much farther than that. Almost any piece of public 



THE SENATE 


123 


policy that touches the individual, though it be never so 
indirectly, may sooner or later come before the Supreme 
Court for judicial examination. Every member of the 
Court, therefore, feels bound to keep his opinions upon 
such matters to himself. He will not discuss with you 
any but the most general public questions, holds discreetly 
silent with regard to every mooted matter of legal policy 
or construction. Men who know the proprieties never 
broach such matters with members of the Court. Senators 
feel a similar obligation of honor with regard to the matters 
in which they bear a confidential relation to the executive. 
They are not at liberty to state to you or even to their 
constituents at home the grounds for such action as they 
may have taken in executive sessions of the Senate until 
the whole matter is so long gone by that no possible harm 
or embarrassment can come of publicity with regard to it. 
Members of the House are not under such restraints. 
Nothing comes before the House of Representatives which 
it is not the right of every man in the United States to 
discuss if he will. No doubt members sometimes act upon 
private information from the White House or a depart¬ 
ment which they would feel it unwise to make generally 
known; but that seldom happens, and if the House talked 
at all, it might talk about anything it chose that it had 
information enough to understand. 

It is no essential part of our present study to ask by 
what influences either members of the House or members 
of the Senate obtain their seats. That is a question con¬ 
cerning, not the form and purpose of our political institu¬ 
tions, but the moral character of the nation itself, the 
social influences which work in it for good or evil. But 
so much has been said in recent years about the methods 


124 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

by which seats in the Senate are secured, so much that is 
of evil report has been believed, that the question cannot 
be passed by without giving our whole inquiry the appear¬ 
ance of a lack of candor. And, after all, any serious loss 
of prestige it may suffer must greatly impair the Senate’s 
power and influence, its usefulness as an instrument of 
constitutional government. It has become customary 
to speak of it as a rich man’s club, and any writer who 
professes to adduce proofs that the corporate interests 
of the country, the great railroads and the greater trusts, 
have secured virtual control of it by putting into it men 
of their own choice, engaged in their behalf by one of 
influence or another to block any legislation likely to harm 
them, gains easy credence. Where there is so much 
smoke, must there not be a little fire? It is a question 
which touches the integrity of our whole constitutional 
system. It would be affectation to avoid it. 

There are many opinions as to the way in which men 
obtain seats in the Senate; and I dare say that for every 
opinion there is a corresponding method, — not just the 
method suggested by the opinion, but sufficiently like it 
to give the opinion more than plausible color. There are 
many ways of getting into the Senate. There are some 
very bad ways; some ways that are neither bad nor good; 
and some very good ways. What it interests me most to 
observe with regard to the matter, in view of what I have 
just been saying of the make-up of the Senate and its gen¬ 
eral relation to the country, is that, so far as one may 
judge from rumor and from what appears in the public 
prints, the bad ways have been oftenest illustrated where 
population is thickest and in a few of the recently created 
states, which, because of their peculiar economic character, 


THE SENATE 


125 


are dominated by a single interest or a single group of 
interests. They have not often been illustrated, to be 
more specific, in those normal western and southern 
states, which I have spoken of in contrast with the centres 
of population and industry as standing for the nation’s 
variety, characteristic of its rich diversity alike of quality 
and of interest rather than of its accumulations of wealth 
and of material power. 

The purchasing power of money in politics is chiefly 
exerted where there is most money. The selfish influence 
of great corporations is most often exhibited where they 
have their seats of control, at the financial centres of the 
country. The processes by which men procure places 
in the Senate have been most often under suspicion where 
men buy most things. One is forced to believe that there 
are some communities, even in the America which we 
love, where the dollar is god, where everything is esti¬ 
mated in money value, and where actual cash is paid for 
votes; and unquestionably there are other communities in 
which the highest political preferment has sometimes been 
bought, not by the direct use of money, but by means 
equally demoralizing, — perhaps more demoralizing because 
less obviously venal, — by a covert bartering of favors, 
unspoken promises, business opportunities offered and 
accepted without any sign given of aught but kindly 
interest and natural friendship. But the whole country 
knows the cases in which these things are suspected, and 
knows them to be few. No candid man who knows any¬ 
thing of the character and circumstances of the persons 
whose names he reads can look through the roll of the 
Senate and think for a moment that such influences pre¬ 
dominate there. 


126 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


In order to get a correct impression of the Senate, it 
is necessary that you extend your observation beyond 
particular sections of the country. One of the greatest 
disadvantages that public opinion labors under in the 
United States is that we have no national newspaper, no 
national organ of opinion. There is no newspaper in the 
United States which is not local, and narrowly local at 
that, both in the news which it prints and in the views which 
it expresses. Each paper makes such selections of general 
news as will interest the particular locality in which it is 
printed, and expresses such views of the nation’s affairs 
as local interest or information suggest. If you read New 
York papers, you will have New York opinions; if you 
read Philadelphia papers, you will have Philadelphia opin¬ 
ions; if you read Chicago papers, you will have Chicago 
opinions; if you read San Francisco papers, you will have, 
not western, but merely San Franciscan, opinions. And if 
you read papers from all four cities, you will not get na¬ 
tional opinion. Though the impressions they give you 
may sometimes seem to have the air of being national, you 
will find that they are after all local impressions, though 
made up out of national material. They bear the color of a 
place. I dare say the thing is inevitable in so big a country; 
but undoubtedly one of the reasons why we so habitually 
misjudge the Senate of the United States is that we have 
no national medium of intelligence, and the papers most 
widely read reflect not national, but local, conditions. 

Indeed, one of the serious difficulties of politics in this 
country, whether you look at it from the point of view 
of the student or the point of view of the statesman, is 
its provincialism, — the general absence of national infor¬ 
mation and, by the same token, of national opinion. And 


THE SENATE 


127 


one is forced to believe, reluctantly enough if he live in 
the East, that the East is the most provincial part of the 
Union,— a very serious matter, because most of our 
information and most of our opinion is printed in the East 
and transmitted thence. The East, being the oldest part 
of the country, having been for a long time the whole of 
it, having the oldest roots of history, the longest traditions 
of influence, the greatest wealth and hitherto an unques¬ 
tioned command of the economic development of the whole 
country, shows as yet little intimate consciousness of the 
rest of it; is much less aware of other communities and 
other interests than its own than are other parts of the 
country. The chief reason why the President of the United 
States can concentrate in himself, if he choose, greater 
power and a more extended influence than any other 
person or any other group of persons connected with the 
government, is, as I have already several times pointed 
out, that all the country is curious about him and interested 
in him as our one national figure, eager to hear everything 
that emanates from him. His doings and sayings con¬ 
stitute the only sort of news that is invariably transmitted 
to every corner of the country and read with equal interest 
in every sort of neighborhood. He is the one perspn about 
whom a definite national opinion is formed and, therefore, 
the one person who can form opinion by his own direct 
influence and act upon the whole country at once. 

It has, therefore, too often escaped the attention of 
the country as a whole that the large majority of the 
members of the Senate of the United States obtain their 
seats by perfectly legitimate methods, because the people 
whom they represent honestly prefer them as representa¬ 
tives; that the large majority of them are poor men who 



128 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


have little or nothing to live on besides their inadequate 
salaries; that the opinion and action of the Senate are for 
the most part determined by the influence of quiet men 
whom the country talks about very little and about whom 
it suspects nothing in the least questionable or dishonorable; 
and that the few notorious members whose reputations 
are most talked of generally play but a very obscure part 
in its business. In most of the states great corporations, 
great combinations of interest, have little to do with the 
choice of senators. Men go to the Senate who are in 
a very real sense the choice of the people, — or rather men 
to whom natural and genuine political leadership has come 
by reason of their personal force or of their services to 
their party, — men of the rank and file who have made 
their way to the top by political, not by commercial, means, 
and who enjoy a veritable popular support. There are 
one or two very influential members of the Senate who 
are also very rich men; but they are influential, not be¬ 
cause of their riches, but because of their long and intelli¬ 
gent service, their complete experience in affairs, and the 
relations of intimate personal confidence which they have 
established with their fellow senators. You have but to 
make the most casual inquiries in Washington to ascertain 
that the men who are in fact most influential in the pro¬ 
ceedings of the Senate are not the men most advertised 
in the newspapers, most conspicuous in the talk of the 
Capitol, not the men who talk most effectively for those 
far-off “galleries” which lie away from Washington, but 
small groups of quiet gentlemen seldom spoken of in the 
public prints, more thoughtful of their duties than of being 
generally talked about,—men who have not laid by fortunes, 
but who have been at the pains to grow rich in the esteem 


THE SENATE 


129 


of the fellow citizens at home who know and support 
them. 

One of the present difficulties lying in the way of main¬ 
taining a high grade of excellence in the Senate, as in the 
House, is that we do not pay our representatives in either 
house salaries large enough to command men of the best 
abilities, or even sufficiently to support those who accept 
seats in the houses, in the sort of domestic comfort and 
dignity we naturally expect them to maintain. Men of 
the highest ability do accept seats in the House and Senate, 
but they do so generally at a great sacrifice, find it exceed¬ 
ingly difficult to live in so expensive a place as Washington 
without a very teasing economy, and are usually forced 
at last to seek some remunerative employment in order 
to pay the debts they have almost inevitably accumulated 
in serving a country which economizes in the wrong items 
of its budget. If the Senate should ever come to deserve 
in fact the reputation of being a rich men’s club, the true 
cause will be found rather v in the salary account on our 
national budget than in the power of wealth to buy legis¬ 
lative seats. As it stands now, only rich men can afford, 
if they be in love with self-respecting ways of living, to 
accept an election in the Senate. 

This, then, is the Senate, the House of individuals, a 
body of representative American men, representing the 
many elements of the nation’s make-up, exhibiting the 
vitality of a various people, speaking for the several parts 
of a country of many parts and many interests, a whole 
and yet full of sharp social and political contrasts; men 
much above the average in ability and in personal force; 
men connected in most cases by long service with the 
business of the government and accustomed to handle 


130 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

its affairs in all their range and variety; a body of coun¬ 
selors who act, if not always wisely or without personal 
and party bias, yet always with energy and without haste. 

It is interesting to the looker-on in Washington to 
observe the unmistakable condescension with which the 
older members of the Senate regard the President of the 
United States. Dominate the affairs of the country though 
he may, he seems to them at most an ephemeral phenome¬ 
non. Even if he has continued in his office for the two 
terms which are the traditional limit of the President’s 
service, he but overlaps a single senatorial term by two 
years, and a senator who has served several terms has 
already seen several Presidents come and go. His expe¬ 
rience of affairs is much mellower than the President’s 
can be; he looks at policies with a steadier vision than 
the President’s; the continuity of the government lies 
in the keeping of the Senate more than in the keeping 
of the executive, even in respect of matters which are of 
the especial prerogative of the presidential office. A mem¬ 
ber of long standing in the Senate feels that he is the pro¬ 
fessional, the President an amateur. 

I have, dwelt at some length upon the character and 
the true constitutional purpose of the Senate because that 
character and purpose govern its whole organization and 
action. It is as different from the House in organization 
as in character and constitutional position. Its power is 
not concentrated in its presiding officer as the power of 
the House is. On the contrary, its presiding officer is 
of all its constituent parts the least significant. In mere 
fact, the Vice President of the United States is, in any 
analysis of the powers and activities of the Senate, prac¬ 
tically negligible. Some occupants of that singular office 


THE SENATE 


131 


have, it is true, made a considerable impression upon the 
Senate and have left distinct marks of their individuality 
upon its record, particularly in matters of procedure. 
Men of great natural force and unusual personality cannot 
spend four years in the chair of so serious and so busy an 
assembly without leaving some memory of their influence. 
But the Vice Presidents of the United States have, almost 
without exception, whatever their natural vigor or instinct 
of initiative, felt that their relation to the Senate was 
purely formal. The Vice President is not a member of 
the Senate. His duties are only the formal and altogether 
impartial duties of a presiding officer. His position l 
seems to demand that he should take no part in party j 
tactics and should hold carefully aloof from all parlia¬ 
mentary struggles for party advantage. Its very dignity 
seems to rob it of vitality in respect of the only duties 
assigned to it by the Constitution. And yet the president 
pro tempore of the Senate, the Vice President’s substitute 
upon occasion, is a vital political figure. He is chosen 
by his party associates of the majority to play a real part 
in the business of the assembly. He holds office at the 
pleasure of the Senate and is in a much more intimate 
and sympathetic relation with the party he represents 
than the Vice President of the United States can be. 

Once or twice it has looked as if the president pro tempore 
were likely to accumulate powers and prerogatives which 
might give his office a power and authority comparable 
with those of the Speaker of the House of Representatives. 
The Senate, like the House, prepares its business through 
the instrumentality of standing committees, and in 1828 
it conferred upon its president pro tempore the authority 
to appoint its committees. But in 1833, for political 


132 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

reasons which it is not necessary to detail here, it again 
changed its rule and resumed to itself the right to consti¬ 
tute its committees by its own choice by ballot. Again 
in 1837 it turned to the president pro tempore for relief 
and conferred upon him the power of appointment, the 
balloting having proved very cumbersome and burden¬ 
some; but in 1845 circumstances again compelled it to 
withdraw the authority. Many considerations seem to 
render the president pro tempore unavailable for such 
functions. The statute of 1792 had put the president 
pro tempore of the Senate in the line of succession to the 
presidency of the United States in case of a vacancy, pro¬ 
viding that if both President and Vice President should 
die or become disqualified, the president pro tempore of 
the Senate should assume the duties of the presidency. 
The Senate regarded its president pro tempore, therefore, 
as a necessary officer only in order that there should be 
no lapse in the office of President. It chose him only for 
the occasions when the Vice President was absent from his 
chair, and allowed his office to lapse again upon the Vice 
President’s return. But a change in the law governing 
the succession to the presidency altered the whole character 
of the temporary office. In 1886 a new statute vested the 
succession in the heads of the executive departments, in 
an order of precedence determined by the dates at which 
their several offices had been created, and the president 
pro tempore of the Senate was omitted from the line of 
succession. Ten years before the Senate had decided 
that its president pro tempore need not be regarded as 
merely a temporary officer chosen from time to time upon 
the occasion of each absence of the Vice President from 
its sittings, and in 1890 it confirmed its decision in that 


THE SENATE 


133 


respect and extended the tenure of this officer of its own 
choice indefinitely. He now holds at the pleasure of the 
Senate, takes the chair whenever the Vice President hap¬ 
pens to be absent, and is superseded only by the election 
of some one else in his place. He is appointed to many 
important committees of the Senate like any ordinary 
member, is usually himself chairman of a leading commit¬ 
tee, and is always sure to be one of the chief figures of his 
party on the floor. Upon a change of majority his office 
lapses and a successor is chosen from the new majority. 

And yet, singularly enough, though he has grown in 
importance with the permanence of his office and has 
seemed once and again to be chosen as in some sense the 
leading representative of his party in the chamber, as 
the Speaker of the House is, he is not in fact in command 
in debate or in the direction of party tactics. The leader 
of the Senate is the chairman of the majority caucus. 
Each party in the Senate finds its real, its permanent, 
its effective organization in its caucus, and follows the 
leadership, in all important parliamentary battles, of the 
chairman of that caucus, its organization and its leader¬ 
ship alike resting upon arrangements quite outside the 
Constitution, for which there is no better and no other 
sanction than human nature. 

The Senate, like the House, digests and manages its 
business through standing committees, and the appoint¬ 
ment of those committees it has in large measure kept 
in its own hands. But the old method of actually choos¬ 
ing them by ballot it has not found it convenient or even 
possible to maintain. Its machinery for the selection of 
committees, as for other party purposes, is the caucus. 
The caucus of each party has its Committee on Committees, 


134 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

appointed by its chairman, subject to the ratification of 
the caucus itself, and charged with the important function 
of selecting its party’s representatives on the standing 
committees. The majority caucus has, besides, its Steer¬ 
ing Committee, similarly appointed, to which fall duties 
very like those of the Committee on Rules in the House. 

The chairman of the majority caucus is much more 
nearly the counterpart of the Speaker of the House than 
is the president pro tempore . His influence is very great 
and very pervasive. Through the Committee on Com¬ 
mittees and the Steering Committee, both of which he 
appoints subject to the confirmation of the caucus, he 
plays no small part in determining both the character 
and the handling of the business the Senate is called on 
to consider. 

But the Senate is a deliberative assembly and is under 
no such discipline of silence and obedience to its commit¬ 
tees as the House is. The duties of its committees are 
much more like those of ordinary old-fashioned committees 
such .as are usually found in all parliamentary bodies, than 
are the duties of the House committees. They are by no 
means in complete control of the business of the Senate. 
A bill introduced by an individual senator may be put 
upon the calendar, debated, and voted upon without refer¬ 
ence to a committee at all. The committees are an 
imperative convenience, and the greater part of the 
Senate’s business is of course prepared by them; but 
they are not permitted to monopolize the floor, and the 
chamber is quick to recognize the right of its individual 
members to have their proposals considered directly, with¬ 
out committee intervention. 

Moreover, the make-up of the committees of the Senate 


THE SENATE 


135 


is determined much more strictly by seniority and by 
personal privilege and precedence than is the membership 
of the committees of the House, with much less regard to 
party lines and much more regard to personal and sectional 
considerations, — by equitable arrangement rather than by 
the personal choice or individual purpose of the caucus 
chairmen. The variety of the country is allowed to show 
itself in the constitution of its committees, as in its debates 
and its recognition of individual privilege among its mem¬ 
bers. An old-fashioned air of equality and democracy 
is still perceptible in the Senate, its popular reputation 
to the contrary notwithstanding, — something of the dis¬ 
cipline of party whips and leaders, as must in any politi¬ 
cal assembly be inevitable, but much more of the air of 
debate, much less the air of rigidly organized business 
and mere efficiency, than in the popular chamber. 

Indeed, the Senate is, par excellence , the chamber of 
debate and of individual privilege. Its discussions are 
often enough unprofitable, are too often marred by per¬ 
sonal feeling and by exhibitions of private interest which 
taint its reputation and render the country uneasy and 
suspicious, but they are at_least_the only means the country 
has of clarifying public business for public comprehension. 

When we turn to the question which is the central 
question of our whole study, the question of the coordina¬ 
tion of the Senate with the other organs of the govern¬ 
ment and the synthesis of authority and power for common 
action, it at once becomes evident that such a body as 
I have described the Senate to be, must be very hard indeed 
to digest into any system. A coordination of wills, united 
movement under a common leadership, is of the very essence 
of every efficient form of government. The Senate has a 


136 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

very stiff will of its own, a pride of independent judgment, 
very admirable in itself, but not calculated to dispose 
it to prompt accommodation when it differs in its views 
and objects from the House or the President. Its very 
excellences stand in its way as an organ of cooperation: 
its slow deliberation, its tolerance of individual opinion, 
its confidence in the political judgment and experience 
of its own leaders, the feeling of permanency and sta¬ 
bility which seems to lift it a little above the influences 
of the immediate day, the critical moment of decision. 
It looks upon the House of Representatives very much 
as it looks upon the President, — as an organ of opinion, 
indeed, and as a coordinate branch of the government 
of undoubted commission from the people, but as likely 
to change, a thing that, in its present character and dis¬ 
position at least, is here to-day and gone to-morrow, to 
make room for new men and new moods. 

The membership of the House is much less stable than 
the membership of the Senate. Not only is the term of a 
senator three times as long as the term of a member of the 
House, but members of the House are much less often 
reelected than are members of the Senate. Most states are 
content to continue their senators in their seats for long 
periods together, but few congressional districts can be 
counted upon not to change their choice very frequently. 
Not only does the 'personnel of the House change rapidly 
and the personnel of the Senate change very slowly, but 
the party majority is much more often changed in the one 
than in the other. For a great many years now the lead¬ 
ers of our national parties have been obliged to think of 
the country as one thing when considered with a view to 
the make-up of the Senate, and another thing when con- 


THE SENATE 


137 


sidered with a view to the make-up of the House. Parties 
have often changed places in commanding the majority in 
the House during the last fifty years, but not often in 
the Senate. The people reckoned by states have usually 
preferred the Republican party; the people reckoned by 
numbers have turned in their choice of men and of parties 
first to the one party and then to the other, as men and 
programs have changed. 

All this, of course, has its effect upon the temper of the 
Senate. It is less disturbed by elections than the House 
is, feels itself in great part sheltered from the winds of party 
contest, and is apt to look upon itself as the poise and 
makeweight of the whole system, which might swing into 
an erratic orb were it allowed to yield to the impulses of 
changing opinion too rapidly. And it is confirmed in this 
view of its functions by the character of its leaders. It 
must be said that the method by which leaders are made in 
the Senate is much more normal, much more in the course 
of nature, than the method by which they are made in 
the House. Nature intended that leaders should be self- 
selected, by proof given of their actual quality in the busi¬ 
ness in which they aspire to lead. And since leaders of 
the Senate are expected to lead in counsel, they are gen¬ 
erally men proved by counsel, men of long training in 
public affairs who have been under inspection by their 
fellow members for many sessions together. The Senate 
is inclined to follow its veterans, — not necessarily its 
chief debaters, but the men who by long service have gained 
a full experience and, by many evidences of good sense 
and cool judgment, the entire confidence of their party 
associates, as guides who will not blunder. The leaders of 
the House win their places by service on the floor, no doubt, 


138 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


before being made Speakers, but they win them as masters 
of parliamentary tactics and as men of will and resource 
rather than as men of counsel; and they win them in a 
restless and changeful assembly few of whose members 
remain in the public service long enough to know any men's 
qualities intimately. The leaders the Senate prefers are 
almost of necessity its most conservative men, — men most 
likely to magnify the powers and prerogatives of the body 
they represent and to stickle for every privilege it pos¬ 
sesses, not at all likely to look to the President for leader¬ 
ship or to yield to the House upon any radical difference 
of opinion or of purpose. 

Particularly in its dealings with the President has the 
Senate shown its pride of independence, its desire to rule 
rather than to be merely consulted, its inclination to mag¬ 
nify its powers and in some sense preside over the policy of 
the government. There can be little doubt in the mind of 
any one who has carefully studied the plans and opinions 
of the Constitutional Convention of 1787 that the relations 
of the President and Senate were intended to be very much 
more intimate and confidential than they have been; that 
it was expected that the Senate would give the President 
its advice and consent in respect of appointments and 
treaties in the spirit of an executive council associated 
with him upon terms of confidential cooperation rather 
than in the spirit of an independent branch of the govern¬ 
ment, jealous lest he should in the least particular attempt 
to govern its judgment or infringe upon its prerogatives. 
The formality and stiffness, the attitude as if of rivalry and 
mutual distrust, which have marked the dealings of the 
President with the Senate, have shown a tendency to in¬ 
crease rather than to decrease as the years have gone by, 


THE SENATE 


139 


and have undoubtedly at times very seriously embarrassed 
the action of the government in many difficult and im¬ 
portant matters. 

The Senate has shown itself particularly stiff and jealous 
in insisting upon exercising an independent judgment upon 
foreign affairs, and has done so so often that a sort of cus¬ 
tomary modus vivendi has grown up between the President 
and the Senate, as of rival powers. The Senate is expected 
in most instances to accept the President’s appointments 
to office, and the President is expected to be very tolerant 
of the Senate’s rejection of treaties, proposing but by no 
means disposing even in this chief field of his power. Ad¬ 
visers who are entirely independent of the official advised 
are in a position to be, not his advisers, but his masters; 
and when, as sometimes happens, the Senate is of one 
political party and the President of the other, its dictation 
may be based, not upon the merits of the question involved, 
but upon party antagonisms and calculations of advantage. 

The President has not the same recourse when blocked 
by the Senate that he has when opposed by the House. 
When the House declines his counsel he may appeal to the 
nation, and if public opinion respond to his appeal the 
House may grow thoughtful of the next congressional 
elections and yield; but the Senate is not so immediately 
sensitive to opinion and is apt to grow, if anything, more 
stiff if pressure of that kind is brought to bear upon it. 

But there is another course which the President may 
follow, and which one or two Presidents of unusual politi¬ 
cal sagacity have followed, with the satisfactory results 
that were to have been expected. He may himself be less 
stiff and offish, may himself act in the true spirit of the 
Constitution and establish intimate relations of confidence 


140 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

with the Senate on his own initiative, not carrying his 
plans to completion and then laying them in final form 
before the Senate to be accepted or rejected, but keeping 
himself in confidential communication with the leaders of 
the Senate while his plans are in course, when their advice 
will be of service to him and his information of the greatest 
service to them, in order that there may be veritable 
counsel and a real accommodation of views instead of a 
final challenge and contest. The policy which has made 
rivals of the President and Senate has shown itself in the 
President as often as in the Senate, and if the Constitution 
did indeed intend that the Senate should in such matters 
be an executive council it is not only the privilege of the 
President to treat it as such, it is also his best policy and 
his plain duty. As it is now, the President and Senate 
are apt to deal with each other with the formality and 
punctilio of powers united by no common tie except the 
vague common tie of public interest, but it is within their 
choice to change the whole temper of affairs in such mat¬ 
ters and to exhibit the true spirit of the Constitution by 
coming into intimate relations of mutual confidence, by 
a change of attitude which can perhaps be effected more 
easily upon the initiative of the President than upon the 
initiative of the Senate. 

It is manifestly the duty of statesmen, with whatever 
branch of the government they may be associated, to study 
in a very serious spirit of public service the right accom¬ 
modation of parts in this complex system of ours, the 
accommodation which will give the government its best 
force and synthesis in the face of the difficult counsels and 
perplexing tasks of regulation with which it is face to face, 
and no one can play the leading part in such a matter with 


THE SENATE 


141 


more influence or propriety than the President. If he 
have character, modesty, devotion, and insight as well as 
force, he can bring the contending elements of the 
system together into a great and efficient body of common 
counsel. 


VI 


THE COURTS 

Our courts are the balance-wheel of our whole constitu¬ 
tional system; and ours is the only constitutional system 
so balanced and controlled. Other constitutional systems 
lack complete poise and certainty of operation because 
they lack the support and interpretation of authoritative, 
undisputable courts of law. It is clear beyond all need of 
exposition that for the definite maintenance of constitu¬ 
tional understandings it is indispensable, alike for the 
preservation of the liberty of the individual and for the 
preservation of the integrity of the powers of the govern¬ 
ment, that there should be some non-political forum in 
which those understandings can be impartially debated and 
determined. That forum our courts supply. There the 
individual may assert his rights; there the government 
must accept definition of its authority. There the in¬ 
dividual may challenge the legality of governmental action 
and have it judged by the test of fundamental principles, 
and that test the government must abide; there the 
government can check the too aggressive self-assertion of 
the individual and establish its power upon lines which 
all can comprehend and heed. The constitutional powers 
of the courts constitute the ultimate safeguard alike of 
individual privilege and of governmental prerogative. It 
is in this sense that our judiciary is the balance-wheel 
142 


THE COURTS 


143 


of our entire system; it is meant to maintain that nice 
adjustment between individual rights and governmental 
powers which constitutes political liberty. 

I am not now thinking of the courts as the lawyer 
thinks of them, as places of technical definition and busi¬ 
ness adjustment, where the rights of individuals as against 
one another are debated and determined; but as the citizen 
thinks of them, as his safeguard against a too arrogant and 
teasing use of power by the government, an instrument 
of politics, — of liberty. Constitutional government exists 
in its completeness and full reality only when the individual, 
only when every individual, is regarded as a partner of the 
government in the conduct of the nation’s life. The citizen 
is not individually represented in any assembly or in any 
regularly constituted part of the government itself. He 
cannot, except in the most extraordinary cases and with 
the utmost difficulty, bring his individual private affairs to 
the attention of Congress or of his state legislature, to 
the attention of the President of the United States or of the 
executive officer of his state; he would find himself balked 
of relief if he did by the laws under which they act and 
exercise their clearly specified powers. It is only in the 
courts that men are individuals in respect of their rights. 
Only in them can the individual citizen set up his private 
right and interest against the government by an appeal 
to the fundamental understandings upon which the gov¬ 
ernment rests. In no other government but our own can 
he set them up even there against the government. He 
can everywhere set them up against other individuals who 
would invade his rights or who have imposed upon him, 
but not against the government. The government under 
every other constitutional system but our own is sover- 


144 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


eign, unquestionable, to be restrained not by the courts 
but only by public opinion, only by the opinion of the 
nation acting through the representative chamber. We 
alone have given our courts power to restrain the govern¬ 
ment under which they themselves act and from which 
they themselves derive their authority. 

And this is not merely because our constitutional under¬ 
standings are explicitly set forth in written documents 
which the courts must regard as part of the body of law 
they are charged to maintain and interpret, — the chief 
and fundamental part to which all other parts must give 
way; for a very important part of the constitutional un¬ 
derstandings upon which the English government rests 
is written in Magna Carta and in the great Bill of Rights, 
and yet the English courts have no authority to check the 
law-making organs of the government even though they 
override Magna Carta and the Bill of Rights in the stat¬ 
utes which they enact. No doubt the definitions of Magna 
Carta and of the Bill of Rights lie at the foundation of 
all government and of all individual privilege in England, 
and if any statute of doubtful interpretation were brought 
before an English court which seemed in contravention of 
rights clearly stated in those documents, the court would 
interpret it in accordance with the terms of those revered 
instruments of liberty; but if a statute should in plain 
terms ignore the definitions and restrictions even of Magna 
Carta and the Bill of Rights, I understand that the court 
would be obliged to enforce it. Parliament is sovereign 
and can do what it pleases. Only the opinion of the nation 
can check or restrain it. Only repeal can set an obnoxious 
statute aside. No government is more entirely governed 
by opinion than the government of England, but it is gov- 


THE COURTS 


145 


erned by the general opinion of the nation, not by the 
particular opinion of the courts. 

This is not because the English courts have been less in¬ 
terested than our own to maintain individual rights and 
liberties or less liberal in their interpretation of individual 
privilege. No courts have been more liberal or more dis¬ 
posed to safeguard private privilege. The common law of 
England has, more than any other law, been a mirror of 
opinion and of social adjustment and has been made in 
its development to fit English life like a well-cut garment. 
Time out of mind English judges have liberalized and 
broadened it by reading into it good principle and en¬ 
lightened opinion. There are some notable old cases in 
the English law reports in which the judges declare all 
principles of right reason and of humanity to be parts of 
the common law of England without precedent. But 
there is no fundamental law susceptible of interpretation 
by the courts which defines or limits the powers of Parlia¬ 
ment. Magna Carta and the Bill of Rights define the 
rights of individuals as against the crown, but not as against 
Parliament, not as against those whom the nation has 
authorized to make its laws. Upon them no document 
which the courts can read or elucidate as law places any 
restraint. The courts must enforce whatever they enact. 
The powers of our law-making bodies are, on the con¬ 
trary, very definitely defined and circumscribed in docu¬ 
ments which are themselves part of the body of our law, 
and the decisions of the courts interpreting those docu¬ 
ments set those law-making bodies their limits. 

To us this power of the courts seems natural not only 
but of the essence of the whole system; but it is in fact 
extraordinary and has been looked upon by not a few of 


146 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


our foreign critics with unaffected amazement. And they 
have been the more amazed because they did not find this 
extraordinary power conferred upon our courts in any 
part or sentence of our fundamental law. “The judicial 
power of the United States,” so run the quiet sentences of 
the Constitution, “shall be vested in one supreme Court 
and in such inferior Courts as the Congress may from time 
to time ordain and establish” and “shall extend to all 
Cases in Law and Equity arising under this Constitution, 
the Laws of the United States, and Treaties made or which 
shall be made under their Authority.” It is only an infer¬ 
ence drawn by the courts themselves that “the laws of the 
United States and treaties made under their authority” 
shall be tested by the Constitution and disallowed if they 
lie outside the field of power it has granted Congress and 
the President, — a very plain inference, no doubt, but only 
an inference: an inference made upon analogy, drawn out 
of historical circumstances and out of a definite theory as 
to the origin of our government. 

There was never any sovereign government in America. 
The governments of the colonies were operated under 
charters granted by the English crown, and could legally 
exercise no powers which those charters did not confer. 
If they exceeded those powers, the king could annul their 
acts, and the king's courts could declare their charters 
forfeited. The same principle and practice still obtains 
with regard to the powers of the chartered English colonies. 
The constitution of Canada is “the British North America 
Act,” an act of Parliament, federating the several prov¬ 
inces, giving each its legislature and its separate field of 
law, and setting over all the Governor and Parliament of 
the Dominion. Anything done either by the government 


THE COURTS 


147 


of the provinces or by the government of the Dominion 
in excess or contravention of the terms of the British 
North America Act is null and void and can be so treated 
by the courts of the Dominion itself, though an appeal 
lies in all cases of such consequence to the Judicial Com¬ 
mittee of the Privy Council in England, a court of the 
sovereign power. The sovereign power now set over us is 
the people. When the authority of the crown lapsed by 
revolution, they assumed it. For colonial charters they 
substituted their state constitutions, to which they pres¬ 
ently added the Constitution of the United States. Their 
sovereign grant of power can no more be exceeded than 
can the grants of the sovereign king of the older day or the 
sovereign Parliament of our own time. Statutes must 
conform to the Constitution and are null and void if they 
do not. Our constitutions are comparable, say Professor 
Dicey and Mr. Bryce, to the charters of great corporations, 
our statutes to their by-laws, our treaties to their contracts. 
No by-law or contract made by them will be upheld by 
any court if in contravention or excess of their charter 
powers. Any English-speaking lawyer would have rea¬ 
soned the matter out as we have reasoned it out. 

None the less, plain inference though it be, this power of 
our courts renders our constitutional system unique. No 
other constitutional system has this balance and means of 
energy, — this means of energy for the individual citizen. 
The individual citizen among us can apply the checks of 
law to the government upon his own initiative, and they 
will respond to his touch as readily as to the touch of 
the greatest political officer of the system. More readily, 
indeed, for the courts will not hear abstract questions. 
Some concrete and tangible interest, involving the right 


148 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


of some particular individual or corporation, must be 
implicated, and implicated in some form which makes a 
legal inquiry and remedy both necessary and possible 
under the ordinary rules of suit and procedure. They will 
not take the question up otherwise, and an individual citi¬ 
zen is a more natural and usual party to such an inquiry 
than an officer of the government. An officer of the gov¬ 
ernment cannot be a party to a suit in his official capacity 
except as he represents some claim or defense of the gov¬ 
ernment itself. The rights of the individual touch the 
subject-matter of the law at a thousand points, and he may 
in mere controversy with his neighbor call in question 
rights which his neighbor professes to exercise under the 
authority of acts of Congress. No officer of the govern¬ 
ment need be or can be a party to such a suit; the court 
is adjudicating private rights and will not hesitate to set 
an act of Congress aside if it invade those rights in contra¬ 
vention or in excess of the powers granted Congress in the 
Constitution. 

Only by slow and searching labor have the courts been 
able to keep our singularly complex system at its right poise 
and adjustment. It has required a long line of cases to 
thread its intricacies and afford the individual a complete 
administration of its safeguards. It is a system of many 
counterpoises and prescriptions. First, there are the 
restrictions placed upon our' governments in respect of 
the powers they can use upon the individual. Congress 
can exercise no powers except those explicitly or by plain 
implication conferred upon it by the Constitution. And 
there are certain things which it is explicitly forbidden to 
do. “The privilege of a writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or Invasion 


THE COURTS 


149 


public safety may require it. No Bill of Attainder or 
ex post facto Law shall be passed.” The powers not 
granted to Congress remain with the states, but certain 
powers are denied the states by their own constitutions, 
some by the Constitution of the United States. “No 
State shall enter into any Treaty, Alliance, or Federation; 
grant Laws of Marque or Reprisal; coin money; emit Bills 
of Credit; make any Thing but gold and silver Coin a 
Tender in Payment of Debts; pass any Bill of Attainder, 
ex post facto Law or Law impairing the Obligation of 
Contracts, or grant any Title of Nobility,” is the language 
of Section X of the first article of the Constitution. And 
added to the restrictions placed upon state and federal 
governments by the Constitution of the United States are 
the still more complex and numerous limitations imposed 
upon the states by their own constitutions. All these, from 
whatever constitution drawn, the courts must interpret 
and enforce. In respect of all of them the courts are in¬ 
struments for the protection of the individual. Besides 
these definitions and restrictions, which partake of the 
nature of a Bill of Rights, our constitutions apportion power 
between the states and the federal government, and that 
apportionment the courts must assist to make definite and 
secure. They apportion powers also to the several parts 
of our state and federal governments, the executive, the 
legislature, and the courts themselves, and this apportion¬ 
ment also the courts must define and maintain. 

It is thus that they are the balance-wheel of the whole 
system, taking the strain from every direction and seeking 
to maintain what any unchecked exercise of power might 
destroy. They are at once instruments of the individual 
against the government, of the government against the 


150 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

individual, of the several members of our political union 
against one another, and of the several parts of govern¬ 
ment in their legal synthesis and adjustment. No wonder 
De Tocqueville marveled at the “ variety of information 
and excellence of discretion” expected of the American 
citizen by the constitutional system under which he lives. 
All these things he may sooner or later find himself obliged 
to call upon the courts to adjudicate and keep at their 
right balance for his sake, that the terms of his partner¬ 
ship with the government may be strictly and righteously 
observed. 

It throws upon him a great responsibility and expects of 
him a constant and watchful independence. There is no 
one to look out for his rights but himself. He is not a 
ward of the government, but his own guardian. The law 
is not automatic; he must himself put it into operation, 
and he must show good cause why the courts should exert 
the great powers vested in them. They will not allow the 
validity of any statute or treaty or of any act of the gov¬ 
ernment to be called lightly in question or drawn unnec¬ 
essarily under discussion. He must show that, in order 
to determine definite, concrete rights of his own which are 
in dispute between himself and his opponent in litigation, 
it is necessary that the courts should answer the question 
he raises as to the validity of what the government has done 
or attempted; not drawing them on to an abstract thesis, 
but bringing them face to face with an actual question of 
law. If it lies in his direct way to do that, it makes no 
difference in what court he raises the question. It need 
not be the Supreme Court of the United States or the 
highest court of the state in which he brings suit. Any 
court can adjudicate the question of the constitutionality 


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15\ 


of the acts of the government, if it have jurisdiction over 
the general subject-matter of the case in which the question 
is raised. The dignity of the question does not alter the 
jurisdiction. Of course, constitutional questions of capital 
importance are very likely to be carried sooner or later to 
the Supreme Court by processes of appeal, but they may 
originate in any court of any grade and belong not to the 
extraordinary but to the ordinary processes of adjudica¬ 
tion. It may fall in the way of any court in the ordinary 
administration of justice to compare by-laws with charters, 
statutes with constitutions, the subordinate parts of the 
law with the ultimate and fundamental parts, the acts of 
the government with their legal norms and standards. 

The same jurisdiction would no doubt spring up in 
England were the rules of the British constitution to be 
reduced to writing and put upon the footing of Magna 
Carta, were the authority of Parliament to be limited and 
defined by charter as the authority of the crown has time 
out of mind been. For English legal practice is the same 
as American. American practice was derived from it. 
In England, as in America, the individual citizen is bidden 
take care of himself, not only against his neighbor but 
also, if he can, against the government. In England, as 
in America, an officer of the law ceases to be an officer of 
the law when he acts in excess of his authority. He may 
be fined or imprisoned or executed as any other man would 
be if he overstep the limits of his warrant and authority 
and do things which he has no right to do. He has no 
authority but that which is legal and for which he can show 
rightful warrant. But it is not so in any other country. 
In every other country an officer of the government is an 
officer whatever he may do, and cannot be haled before the 


152 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


ordinary courts. He will be restrained from doing illegal 
things, but only by his superiors, to whom injured per¬ 
sons must complain, or by special administrative tribunals 
provided for the purpose, before which the individual may 
cite him. No superior officer, no administrative court, will 
handle a complaint against him as an ordinary court would 
handle a suit or indictment. The offense charged will be 
looked at from the point of view of administrative offi¬ 
cers, as a public indiscretion rather than as a private 
wrong; great latitude will be allowed an officer of the 
law if he profess to act in the public interest and cannot 
be shown to have acted in malice. The atmosphere of 
the inquiry is the atmosphere of authority, and the dis¬ 
cipline applied will be the discipline of a corps, not the 
judgment of an ordinary court against a breaker of the 
law. Citizens are subjects, not partners of the govern¬ 
ment. It is against the whole spirit of our polity, on the 
contrary, that we should be running to the government 
with complaints. Our practice is built upon individual 
rights, and the individual is freely given the means to 
take care of himself in courts which are his own no less 
than they are the government’s. The courts are meant 
to be the people’s forum, open to all who wish the law 
determined. 

It is of the deeper consequence that the courts should in 
fact be open to all, equally accessible and serviceable to 
every man. If it be true, as it is nowadays common to 
charge, that our courts are serviceable only to the rich, 
we should look to it, for in that case our system is im¬ 
paired at its very heart; its poise and balance are gone. 
Are our courts as available for the poor as for the rich? 
It is not a question of impartiality or fairness, of disposi- 


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153 


tion to hear the suit of the poor as readily and as atten¬ 
tively as the suit of the rich. Some inferior men are no 
doubt appointed to our federal bench; our state courts 
are many of them filled by processes of election which 
take account of the judge’s political opinions and of his 
service to a political party rather than of his learning or 
of his rank among his fellow practitioners at the bar, and 
many men are chosen who are not suitable either in char¬ 
acter or attainments; but the average integrity of the 
American bench is extraordinarily high. There are not 
many courts of which it can justly be said that a man 
will be denied his legal rights because he is poor or with¬ 
out influential connections. The question I raise is of 
another kind. Are not poor men in fact excluded from 
our courts by the cost and the length of their processes? 
The rich man can afford the cost of litigation; what is 
of more consequence, he can afford the delays of trial 
and appeal; he has a margin of resources which makes 
it possible for him to wait the months, it may be the years, 
during which the process of adjudication will drag on and 
during which the rights he is contesting will be suspended, 
the interests involved tied up. But the poor man can 
afford neither the one nor the other. He might afford the 
initial expense, if he could be secure against delays; but 
delays he cannot abide without ruin. I fear that it must 
be admitted that our present processes of adjudication 
lack both simplicity and promptness, that they are un¬ 
necessarily expensive, and that a rich litigant can almost 
always tire a poor one out and readily cheat him of his 
rights by simply leading him through an endless maze of 
appeals and technical delays. 

If this be true, our very constitutional principle has 


154 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

fallen into dangerous disrepair, and our immediate duty is 
to amend and simplify our processes of justice. There is 
no guarantee of liberty under a system like ours, if the 
courts be not as accessible and as serviceable to the poor 
man as to the rich. Of course, they never can be so 
literally. The processes of justice must always, if they 
are to be thorough, be deliberate, not hurried, often elabo¬ 
rate, not always simple. Even if they were available to 
the poor man without any cost whatever in money, they 
must in any case cost him something in time and trouble; 
and the very poor, tied to their tasks in fear of momentary 
need, cannot spend time or attention on anything which 
does not earn them bread. But it were shame upon us if 
we could not bring our courts nearer to the poor man than 
they are now, and the most immediately necessary reform 
of our system lies in that direction. The individual of 
whatever grade or character must be afforded opportunity 
to take care of himself, whether against the power of his 
neighbor or against the power of the government. 

I have spoken of the state and federal courts without 
discrimination. They are all branches of the people’s 
forum. Constitutional questions may be determined by 
them all, of whatever grade, because individual rights must 
be adjudicated by them all. But it is interesting to observe 
the line that runs between state and federal jurisdictions. 
It affords a sort of insight into the character of our complex 
constitutional system which no other part of our study can 
afford. The political relations between the states and the 
federal government I shall consider in another lecture, and 
inasmuch as their political relations rest in large measure 
in a system like ours upon their legal relations, I will re¬ 
serve also the greater part of what I have to say about the 


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law of their union and separation until all parts of the 
picture may be put together in a single sketch. But some 
part of the matter lies immediately under our eyes here. 

The tests of the federal Constitution can be applied in 
the state courts, and the tests of the state constitutions in 
the federal courts, but only in such a way as to make the 
federal courts the final judges of what the meaning and 
intent of the federal Constitution is, and the state courts 
the final judges and interpreters of what the state constitu¬ 
tions forbid or require. The Constitution of the United 
States makes the federal courts the forum for the trial, 
not only of cases arising under federal law, but also for the 
trial of suits between litigants who are citizens of different 
states and who have therefore no other common tribunal. 
Cases between citizens of different states need not be tried 
in the courts of the United States, if the litigants are con¬ 
tent to submit them to the courts of the state in which the 
cause of action arose; but the federal courts are open to 
them; and if in such a case tried in them it should be¬ 
come necessary to interpret the provisions of a state 
constitution, the federal courts must of course attempt 
that interpretation as they would attempt any other ques¬ 
tion the case might bring under their examination. But 
they would feel themselves obliged to adopt the interpreta¬ 
tion already put upon those provisions by the courts of the 
state whose constitution was under examination. Only 
when there were no decisions of the courts of the state 
upon the subject would they feel at liberty to follow their 
own reading and interpretation. The courts of the United 
States have not the right to impose upon litigants their 
own interpretations of the fundamental law of a state 
when that law in no way involves the jurisdiction or the 


156 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

authority of the federal government, and in the trial of 
ordinary cases between citizens of different states they 
must hold themselves to the administration of state laws 
as they are interpreted by the courts of the states in which 
they originated. 

Similarly, the courts of the states are at liberty to deter¬ 
mine cases which involve an interpretation of the Constitu¬ 
tion of the United States. No question is foreign to them 
which belongs to a case regularly instituted before them; 
but they in their turn are bound to follow in such matters 
the decisions of the courts of the United States, so far as 
they may have covered the matter drawn in question. 
The courts of the United States must be the ultimate judges 
of the meaning and intent of federal law, as the courts of 
the states are of the principles of state law. A litigant in 
a state court may contend, for example, that some statute, 
or even some constitutional provision, of the state, under 
which his opponent is suing him or making defense, is in¬ 
consistent with the Constitution of the United States. If 
the court uphold him in this contention and treat the law 
which he challenges as null and void because inconsistent 
with federal law, there is an end of the matter. The court 
has upheld federal law against the law of the state, and no 
appeal can be taken to a court of the United States, — 
which could do no more. But if the court disallow the 
plea and declare the state law valid notwithstanding its 
alleged conflict with the law of the United States, the 
defeated litigant may take an appeal to the courts of 
the United States; for with a federal tribunal must lie the 
final determination of the conflict, lest the state court 
might have been biased in favor of the law and privilege 
of the state under whose authority it acted. 


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157 


The significance of this principle of action is that the 
federal government is, through its courts, in effect made 
the final judge of its own powers. In no case can a con¬ 
flict of authority between it and the government of a state 
be finally decided against it by a state court, by any court 
but its own, if the parties in interest choose to appeal. 
The whole balance of our federal system, therefore, lies in 
the federal courts. It is inevitable that it should be so. 
Our constitutional law could have no final certainty other¬ 
wise. “This Constitution, and the Laws of the United 
States which are made in Pursuance thereof; and all 
Treaties made, or which shall be made, under the authority 
of the United States shall be the supreme Law of the Land; 
and the Judges in every State shall be bound thereby, any 
Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding:” such is the definite, uncom¬ 
promising language of the Constitution of the United States. 
No one can doubt that it was necessary for the mainte¬ 
nance of the system that the courts of the federal govern¬ 
ment should be the arbiters of all questions of disputed 
jurisdiction or conflicting authority. But of course such 
a principle constitutes the courts of the United States the 
guardians of our whole legal development. With them 
must lie the final statesmanship of control. 

For by according such powers to our courts we virtually 
vest in them the statesmanship of control. The Constitu¬ 
tion is not a mere lawyers’ document: it is, as I have 
more than once said, the vehicle of a nation’s life. No 
lawyer can read into a document anything subsequent to 
its execution; but we have read into the Constitution of the 
United States the whole expansion and transformation of 
our national life that has followed its adoption. We can 


158 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


say without the least disparagement or even criticism of 
the Supreme Court of the United States that at its hands 
the Constitution has received an adaptation and an elabora¬ 
tion which would fill its framers of the simple days of 1787 
with nothing less than amazement. The explicitly granted 
powers of the Constitution are what they always were; 
but the powers drawn from it by implication have grown 
and multiplied beyond all expectation, and each generation 
of statesmen looks to the Supreme Court to supply the 
interpretation which will serve the needs of the day. It 
is a process necessary but full of peril. It is easier to 
form programs than to exercise a wise and moderate con¬ 
trol, and the task of the courts calls for more poise, nicer 
discriminations of conscience, a steadier view of affairs, 
and a better knowledge of the principles of right action, 
than the task of Congress or of the President. Both the 
safety and the purity of our system depend on the wisdom 
and the good conscience of the Supreme Court. Expanded 
and adapted by interpretation the powers granted in the 
Constitution must be; but the manner and the motive of 
their expansion involve the integrity, and therefore the 
permanence, of our entire system of government. 

By common consent the most notable and one of the most 
statesmanlike figures in our whole judicial history is the 
figure of John Marshall. No other name is comparable 
with his in fame or honor in this singular field of states¬ 
manlike judicial control, — a field of our own marking 
out and creation, a statesmanship peculiar to our own 
annals. Marshall may be said to have created for us the 
principles of interpretation which have governed our 
national development. He created them like a great 
lawyer, master of the fundamental conceptions which 


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159 


have enlightened all great lawyers in the administration 
of law and have made it seem in their hands a system of 
life, not a mere body of technical rules; he created them 
also like a great statesman who sees his way as clearly 
without precedent as with it to those renderings of charter 
and statute which will vivify their spirit and enlarge their 
letter without straining a single tissue of the vital stuff of 
which they are made. 

A thoughtful English judge has distinguished between 
those extensions of the meaning of law by interpretation 
which are the product of insight and conceived in the 
spirit of the law itself, and those which are the product of 
sheer will, of the mere determination that the law shall 
mean what it is convenient to have it mean. Marshall’s 
interpretations were the products of insight. His learning 
was the learning of the seer, saturated with the spirit of 
the law, instinct with its principle of growth. No other 
method, no other principle has legitimate place in a system 
which depends for its very life upon its integrity, upon the 
candor and good conscience of its processes, upon keeping 
faith with its standards and its immemorial promises. 

One of the most dramatic and interesting scenes in our his¬ 
tory, the scene with which the imagination of the historian 
who is keenly alive to those processes of constitutional de¬ 
velopment which have made the nation and yet have threat¬ 
ened to unmake it is most engaged, is that enacted on the 
fourth of March, 1829, when Andrew Jackson, the sincere 
apostle of principles of action which were apt to make light 
of law, was sworn into office by John Marshall, the aged Chief 
Justice at whose hands the law of the nation had received 
alike its majesty and its liberal spirit of ordered progress. 
Jackson himself was not young. He had grown gray in 


160 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

having his own way, in acting upon principles he deemed 
right, whether they had the warrant of law or not; — no 
outlaw; on the contrary, a man of conscience and honor, 
but habituated to the principles of the frontier and of the 
field of battle, where action did not wait upon law but 
formed itself on the exigencies of the occasion. He took 
the oath of office in all solemnity and good faith, swear¬ 
ing “to the best of his ability to preserve, protect, and 
defend the Constitution of the United States.’’ But he 
afterward explained, when he chose to ignore the de¬ 
cisions of the Supreme Court, uttered by Chief Justice 
Marshall in authoritative interpretation of the Constitu¬ 
tion, that he had sworn to uphold and preserve it as he 
understood it, and would take no dictation as to its mean¬ 
ing from any source but his own intelligence and con¬ 
science. The two men were at the antipodes from one 
another both in principle and in character; had no com¬ 
mon insight into the institutions of the country which they 
served; represented one the statesmanship of will and the 
other the statesmanship of control. General Jackson was 
a brave man, devoted to the performance of his duty with 
a genuine ardor of unselfish patriotism, and rendered ser¬ 
vices in his administration of the great office he held for 
which he must always be honored so long as the large inter¬ 
ests of the nation are understood; but he was the sort of 
man who might very easily twist and destroy our whole 
constitutional system, were the courts robbed of their 
authority and the great balance-wheel of their power 
shaken from its gearings. One might moralize upon the 
picture of these two old men standing there face to face 
at Jackson’s inauguration until he had expounded the 
very genius of our institutions. Marshall, putting the 


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oath of office to Jackson, was repeating in quiet, modern 
form the transaction of Runnymede. 

Some German critics of our constitutional system, 
trained in another school of politics and another school of 
law, have looked upon the powers of our courts as a dan¬ 
gerous anomaly. We have, they say, taken our courts out 
of their proper sphere and put them where courts do 
not belong, in the field of politics, where they are set as 
masters over Congress and the President by whom the 
policies of the nation are formed. But such criticisms 
ignore both the principle of constitutional government and 
the actual practice of our courts. They emanate from 
men for whom all law is the voice of government and who 
regard the government as the source of all law, who can¬ 
not conceive of a law set above government and to which 
it must conform. It must be admitted that such a law 
is not everywhere essential to the maintenance of con¬ 
stitutional government. The English nation restrains its 
king by written compact, but it has never restrained its 
Parliament. Parliament its law leaves supreme because 
Parliament is representative of the nation, and opinion 
is strong and concerted enough to restrain it without law 
and the assistance of the courts. But we faced a very 
singular task when we undertook to combine the one-time 
colonies of England in America into a constitutional fed¬ 
eral state. There had been no time to form a national 
habit or accumulate precedents with regard to a common 
government. It was necessary to create it by law, to 
accommodate its various parts to one another by law, to 
define both its powers and the relations of the people to it 
by law. No other constitutional understanding was ever 
quite so detailed or so definite, no other constitutional 


162 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

understanding ever rested upon just such foundations of 
circumstance and purpose. 

But we did not, with all our inventing, create anything 
abnormal or unnatural; and our continental critics mis¬ 
take the actual practice of our courts in acting upon con¬ 
stitutional questions. They do not act as instruments of 
politics, but only as modest instruments of law, as any 
other courts would. A very superficial examination of the 
constitutional decisions of the Supreme Court of the United 
States will suffice to show how careful it has been to refrain 
from even the appearance of dictating to Congress or to 
the executive. It has sought to respect their authority 
and to give full scope to their discretion in every possible 
way, at every possible point, never setting its judgment or 
opinion against theirs in any case which admitted of reason¬ 
able doubt, never drawing political questions into discus¬ 
sion, but confining itself most scrupulously to its proper 
business of adjudicating individual rights, whether those 
rights arise under the Constitution or under statutes; and 
it has demanded that a very clear case be made out against 
any act of Congress said by the litigants before it to be 
unconstitutional, before it would venture to set aside what 
Congress had ordained. In no instance has it acted upon 
political grounds when setting aside an act of Congress, 
but always upon clearly defined legal grounds, because the 
act had been shown to be inconsistent with indisputable 
provisions of the fundamental charter of the government 
itself. There could be no alternative in the case of a gov¬ 
ernment of limited and specified powers. 

And there has never been any serious friction between 
Congress and the courts. Occasional irritation there has 
been, of course. Congressmen have sometimes, forgetting 


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163 


their constitutional principles, spoken in sharp and resent¬ 
ful criticism of the presumption of federal judges who 
have declared favorite pieces of legislation unconstitu¬ 
tional and refused to execute statutes by means of which 
politicians had hoped to store up credit to themselves or 
their party. Senators have shown a particular sensitive¬ 
ness in the matter. There are many distinguished lawyers 
in the Senate whose opinion upon points of law ought 
no doubt to be regarded as individually quite as weighty 
and conclusive as that of a district or circuit judge of the 
United States who has declined to enforce acts which 
had passed under their scrutiny. Second-class lawyers, it 
has been said in heat, men who had themselves once been 
members of the House or Senate and who had there shown 
their inferiority in legal discussion, venture, when appointed 
to seats on the bench, to set aside the judgments of the 
very men who formerly worsted them in debate upon 
those very questions. But members of Congress must 
usually be patient under these crosses. They will often 
remember that it was upon their own recommendation 
that these very men, their one-time comrades, were ap¬ 
pointed by the President; that the appointments passed 
the scrutiny of the Judiciary Committee of the Senate 
and were confirmed; and that the point of view of the 
lawyer in Congress is after all not always the point of view 
of the lawyer on the bench, whose concern is not with 
political considerations, but with the legal rights of the 
litigants before him and the exact maintenance of the 
terms of the law. 

There are instances which they will recall which are full 
of instruction. Mr. Salmon P. Chase, when Secretary of 
the Treasury under Mr. Lincoln, advocated the issue of 


164 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


irredeemable paper currency in relief of the Treasury, 
and was largely instrumental in inducing Congress to pass 
the statutes which filled the country with “ greenbacks,” 
declaring it to be his opinion that such issues were legal 
under the powers granted Congress in the Constitution; 
but Mr. Salmon P. Chase, when afterward Chief Justice 
of the United States, joined with the majority of that 
great court in declaring the legal tender acts unconstitu¬ 
tional. The thing might happen with the most conscien¬ 
tious lawyer. It is one thing to have to decide a matter 
of that kind in connection with important business you 
are conducting, and it is quite another thing to have it 
to decide as a judge lifted above all personal interest in 
the matter and bidden take it upon its merits, not as an 
advocate but as an arbiter. 

Undoubtedly federal judges may be mistaken and law¬ 
yers in Congress right, if the lawyers in Congress be of 
better stuff morally and intellectually than the judges 
they have recommended or allowed the President to 
appoint; but that simply points an old moral. No part 
of any government is any better than the men who admin¬ 
ister it. A distinguished member of a well-known reform 
club once told me that after twenty years of hard work 
in trying to further the objects of good government to 
which the club had devoted itself, he had a very humiliating 
confession to make. Throughout all those years he had 
labored assiduously to get the laws of the State in which 
he lived modified and improved, and to have all practices 
of which his club disapproved in state or city governments 
made illegal by statute. Year after year he had gone to 
the capital of the state and pressed every legitimate influ¬ 
ence he could command to induce the legislature to enact 


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165 


the desired laws, and once and again he had succeeded. 
But government did not seem to be reformed, whatever 
his success. Old practices went on unchecked, or took 
new forms, or eluded the processes of law. It was a long 
lesson, and he had very stubbornly refused to learn it, 
but he had learned it at last and was now ready to make 
his confession that after all he had been mistaken: the 
way to reform government was to elect good men to con¬ 
duct it, and that was the whole matter. Good laws were 
desirable, but good men were indispensable, and could make 
even bad laws yield pure and righteous government. 

Every government is a government of men, not of laws, 
and of course the courts of the United States are no wiser 
or better than the judges who constitute them. A series 
of bad appointments might easily make them inferior to 
every other branch of the government in their compre¬ 
hension of constitutional principles, their perception of 
constitutional values. But that would be because the 
government had fallen into wrong hands, and would not 
invalidate the principle upon which our courts are con¬ 
stituted and empowered. It is an argument for electing 
the right men to the presidency and to the Senate, which 
confirms the President’s appointments; it is not an argu¬ 
ment for changing our constitutional arrangements. The 
constitutional powers of the courts are no less indispensable, 
no less central and essential to our whole system and con¬ 
ception of government, because they are sometimes unwise 
or unintelligent in their exercise of them. 

Indeed, it is not easy to speak of this subject, so funda¬ 
mental, so deeply significant, without pausing to point 
out the interesting interdependence of the several parts 
of our government and the many contingencies upon which 


166 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


their excellence and their integrity depend. The courts 
of the United States control the action of the other branches 
of the government in the interest of our fundamental 
constitutional understandings; and yet the courts of 
the United States are constituted by federal statute and 
by the President’s appointment. The judicial power of 
the United States is vested “in one Supreme Court and 
in such inferior courts as Congress may from time to time 
ordain and establish”; only the Supreme Court exists 
by direct provision of the Constitution itself. Other 
courts Congress may establish or abolish, increase or de¬ 
crease, assign to this jurisdiction or to that. The Consti¬ 
tution provides, indeed, that all judges of the United States 
shall hold their offices during good behavior, but Congress 
could readily overcome a hostile majority in any court or in 
any set of courts, even in the Supreme Court itself, by a 
sufficient increase in the number of judges and an adroit 
manipulation of jurisdictions, and could with the assistance 
of the President make them up to suit its own purposes. 
These two “coordinate” branches of the government, to 
which the courts speak in such authoritative fashion with 
regard to the powers they may and may not exercise under 
the Constitution, — namely, Congress and the executive, — 
may, in fact, if they choose, manipulate the courts to their 
own ends without formal violation of any provision of the 
fundamental law of the land. There has never been any 
serious fear that they would do anything of the kind, 
though an occasional appointment to the Supreme Court 
has made the country suspicious and uneasy. But it is 
well to keep the matter clearly before us, if only that we 
may remind ourselves of the only absolute safeguards 
of a constitutional system. They lie in the character, the 


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167 


independence, the resolution, the right purpose of the 
men who vote and who choose the public servants of whom 
the government is to consist. Any government can be 
corrupted, any government may fall into disrepair. It 
consists of men, and the men of whom it consists will be 
no better than the men who choose them. The courts 
are the people’s forum; they are also the index of the gov¬ 
ernment’s and of the nation’s character. 

The weightiest import of the matter is seen only when 
it is remembered that the courts are the instruments of 
the nation’s growth, and that the way in which they 
serve that use will have much to do with the integrity of 
every national process. If they determine what powers 
are to be exercised under the Constitution, they by the 
same token determine also the adequacy of the Consti¬ 
tution in respect of the needs and interests of the nation; 
our conscience in matters of law and our opportunity in 
matters of politics are in their hands. There is so much 
to justify the criticism of our German critics; but they 
have not put their fingers upon the right point of criticism. 
It is not true that in judging of what Congress or the 
President has done, our courts enter the natural field of 
discretion or of judgment which belongs to other branches 
of government, — a field in its nature political, where lie 
the choices of policy and of authority. That field they 
respectfully avoid, and confine themselves to the neces¬ 
sary conclusions drawn from written law. But it is true 
that their power is political; that if they had interpreted 
the Constitution in its strict letter, as some proposed, and 
not in its spirit, like the charter of a business corporation 
and not like the charter of a living government, the vehicle 
of a nation’s life, it would have proved a strait-jacket, a 


168 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

means not of liberty and development, but of mere re¬ 
striction and embarrassment. I have spoken of the states¬ 
manship of control expected of our courts; but there is 
also the statesmanship of adaptation characteristic of all 
great systems of law since the days of the Roman prsetor; 
and there can be no doubt that we have been singular 
among the nations in looking to our courts for that double 
function of statesmanship, for the means of growth as well 
as for the restraint of ordered method. 

But our courts have stood the test, chiefly because 
John Marshall presided over their processes during the for¬ 
mative period of our national life. He was of the school 
and temper of Washington. He read constitutions in 
search of their spirit and purpose and understood them 
in the light of the conceptions under the influence of which 
they were framed. He saw in them not mere negations 
of power, but grants of power, and he reasoned from out 
the large political experience of the race as to what those 
grants meant, what they were intended to accomplish, not 
as a pedant but as a statesman, rather; and every genera¬ 
tion of statesmen since his day have recognized the fact 
that it was he more than the men in Congress or in the 
President’s chair who gave to our federal government its 
scope and power. The greatest statesmen are always 
those who attempt their tasks with imagination, with a 
large vision of things to come, but with the conscience 
of the lawyer, also, the knowledge that law must be built, 
not wrested, to their use and purpose. And so, whether 
by force of circumstance or by deliberate design, we have 
married legislation with adjudication and look for states¬ 
manship in our courts. 

No one can truly say that our courts have held us back 


THE COURTS 


169 


or have ever exhibited a spirit of mere literalness and 
reaction. Many a series of cases has built the implica¬ 
tions of the Constitution out to meet the needs and the 
changing circumstances of the nation's life. The process 
has seemed at times a little too facile. The courts have 
seemed upon occasion to seek in the law what they wished 
to find rather than what frank and legitimate inference 
would yield. Once and again they have been all too com¬ 
placent in giving Congress leave to read its powers as best 
suited its convenience at a particular exigency in affairs. 
It is to be feared that they did so in connection with the 
many difficult questions which arose in regard to the settle¬ 
ments which followed upon the war between the states. 
But for the most part their method and their inferences 
have been conservative enough. The wonder is that they 
have kept so level a keel while serving a nation which has 
always insisted upon carrying so much sail. 

When the Constitution was framed there were no rail¬ 
ways, there was no telegraph, there was no telephone. 
The Supreme Court has read the power of Congress to 
establish post-offices and post-roads and to regulate com¬ 
merce with foreign nations and among the several states 
to mean that it has jurisdiction over practically every 
matter connected with intercourse between the states. 
Railways are highways; telegraph and telephone lines 
are new forms of the post. The Constitution was not 
meant to hold the government back to the time of horses 
and wagons, the time when postboys carried every com¬ 
munication that passed from merchant to merchant, when 
trade had few long routes within the nation and did not 
venture in bulk beyond neighborhood transactions. The 
United States have clearly from generation to generation 


170 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

been taking on more and more of the characteristics of 
a community; more and more have their economic interests 
come to seem common interests; and the courts have 
rightly endeavored to make the Constitution a suitable 
instrument of the national life, extending to the things 
that are now common the rules that it established for 
similar things that were common at the beginning. 

The real difficulty has been to draw the line where this 
process of expansion and adaptation ceases to be legitimate 
and becomes a mere act of will on the part of the govern¬ 
ment, served by the courts. The temptation to overstep 
the proper boundaries has been particularly great in inter¬ 
preting the meaning of the words, “commerce among 
the several states.” Manifestly, in a commercial nation 
almost every item of life directly or indirectly affects com¬ 
merce, and our commerce is almost all of it on the grand 
scale. There is a vast deal of buying and selling, of course, 
within the boundaries of each state, but even the buying 
and selling which is done within a single state constitutes 
in our day but a part of that great movement of merchan¬ 
dise along lines of railway and watercourse which runs 
without limit and without regard to political jurisdiction. 
State commerce seems almost impossible to distinguish 
from interstate commerce. It has all come to seem part 
of what Congress may unquestionably regulate, though 
the makers of the Constitution may never have dreamed 
of anything like it and the tremendous interests which it 
affects. Which part of the complex thing may Congress 
regulate ? 

Clearly, any part of the actual movement of merchan¬ 
dise and persons from state to state. May it also regulate 
the conditions under which the merchandise is produced 


THE COURTS 


171 


which is presently to become the subject-matter of inter¬ 
state commerce? May it regulate the conditions of labor 
in field and factory? Clearly not, I should say; and I 
should think that any thoughtful lawyer who felt himself 
at liberty to be frank would agree with me. For that 
would be to destroy all lines of division between the field 
of state legislation and the field of federal legislation. 
Back of the conditions of labor in the field and in the 
factory lie all the intimate matters of morals and of domes¬ 
tic and business relationship which have always been 
recognized as the undisputed field of state law; and these 
conditions that lie back of labor may easily be shown 
to have their part in determining the character and effi¬ 
ciency of commerce between the states. If the federal 
power does not end with the regulation of the actual move¬ 
ments of trade, it ends nowhere, and the line between 
state and federal jurisdiction is obliterated. But this 
is not universally seen or admitted. It is, therefore, one 
of the things upon which the conscience of the nation 
must make test of itself, to see if it still retain that spirit 
of constitutional understanding which is the only ultimate 
prop and support of constitutional government. It is 
questions of this sort that show the true relation of our 
courts to our national character and our system of gov¬ 
ernment. 

The relation of the courts to opinion is a difficult matter 
to state, and as delicate as difficult; yet it lies directly in 
our path. I have pointed out in previous lectures that 
opinion was the great, indeed the only, coordinating force 
in our system; that the only thing that gave the President 
an opportunity to make good his leadership of his party 
and of the nation as against the resistance or the indiffer- 


172 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


ence of the House or Senate was his close and especial 
relation to opinion the nation over, and that, without 
some such leadership as opinion might sustain the Presi¬ 
dent in exercising within the just limits of the law, our 
system would be checked of all movement, deprived 'of all 
practical synthesis by its complicated system of checks 
and counterpoises. What relation, then, are the courts 
to bear to opinion? The only answer that can be made 
is this: judges of necessity belong to their own generation. 
The atmosphere of opinion cannot be shut out of their 
court rooms. Its influence penetrates everywhere in 
every self-governed nation. What we should ask of our 
judges is that they prove themselves such men as can dis¬ 
criminate between the opinion of the moment and the 
opinion of the age, between the opinion which springs, a 
legitimate essence, from the enlightened judgment of 
men of thought and good conscience, and the opinion of 
desire, of self-interest, of impulse and impatience. What 
we should ask of ourselves is that we sustain the courts 
in the maintenance of the true balance between law and 
progress, and that we make it our desire to secure nothing 
which cannot be secured by the just and thoughtful 
processes which have made our system, so far, a model 
before all the world of the reign of law. 


VII 


THE STATES AND THE FEDERAL GOVERNMENT 

m 1£The question of the relation of the States to the federal 
government is the cardinal question of our constitutional 
system. At every turn of our national development we 
have been brought face to face with it, and no definition 
either of statesmen or of judges has ever quieted or decided 
it. It cannot, indeed, be settled by the opinion of any one 
generation, because it is a question of growth, and every 
successive stage of our political and economic development 
gives it a new aspect, makes it a new question. The general 
lines of definition which were to run between the powers 
granted to Congress and the powers reserved to the States 
the makers of the Constitution were able to draw with 
their characteristic foresight and lucidity; but the subject- 
matter of that definition is constantly changing, for it is 
the life of the nation itself. Our activities change alike 
their scope and their character with every generation, j 
The old measures of the Constitution are every day to be 
filled with new grain as the varying crop of circumstances 
comes to maturity. It is clear enough that the general 
commercial interests, the general financial interests, the 
general economic interests of the country, were meant to be 
brought under the regulation of the federal government, 
which should act for all; and it is equally clear that what 
are the general commercial interests, what the general 
financial interests, what the general economic interests of 
173 


174 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


the country, is a question of fact, to be determined by cir¬ 
cumstances which change under our very eyes, and that, 
case by case, we are inevitably drawn on to include under the 
established definitions of the law matters new and unfore¬ 
seen, which seem in their magnitude to give to the powers 
of Congress a sweep and vigor certainly never conceived 
possible by earlier generations of statesmen, sometimes 
almost revolutionary even in our own eyes. The subject- 
matter of this troublesome definition is the living body of 
affairs. To analyze it is to analyze the life of the nation. 

It is difficult to discuss so critical and fundamental a 
question calmly and without party heat or bias when it 
has come onc& more, as it has now, to an acute stage. Just 
because it lies at the heart of our constitutional system, 
to decide it wrongly is to alter the whole structure and 
operation of our government, for good or for evil, and one 
would wish never to see the passion of party touch it to 
distort it. A sobering sense of responsibility should fall 
upon every one who handles it. No man should argue it 
this way or that for party advantage. Desire to bring the 
impartial truth to light must, in such a case, be the first 
dictate alike of true statesmanship and of true patriotism. 
Every man should seek to think of it and to speak of it in 
the true spirit of the founders of the government and of 
all those who have spent their lives in the effort to confirm 
its just principles both in counsel and in action.) 

Almost every great internal crisis in our affairs has turned 
upon the question of state and federal rights. To take 
but two instances, it was the central subject-matter of the 
great controversy over tariff legislation which led to 
attempted nullification and of the still greater controversy 
over the extension of slavery which led to the war between 


THE STATES AND THE FEDERAL GOVERNMENT 175 

the States; and those two controversies did more than any 
others in our histoi^ to determine the scope and character 
of the federal government. 

The principle of the division of powers between state and • 
federal governments is a very simple one when stated in its 
most general terms. It is that the legislatures of the 
States shall have control of all the general subject-matter 
of law, of private rights of every kind, of local interests, and 
of everything that directly concerns their people as com¬ 
munities, — free choice with regard to all matters of local 
regulation and development, and that Congress shall have 
control only of such matters as concern the peace and the 
commerce of the country as a whole. The opponents of the 
tariff of 1824 objected to the tariff system which Congress 
was so rapidly building up, that it went much beyond the 
simple and quite legitimate object of providing the federal 
government with revenue in such a way as to stimulate 
without too much disturbing the natural development 
of the industries of the country, and was unmistakably 
intended to guide and determine the whole trend of the 
nation’s economic evolution, preferring the industries of 
one section of the country to those of another in its bestowal 
of protection and encouragement, and so depriving the 
States as self-governing communities of all free economic 
choice in the development of their resources.^ Congress 
persisted in its course; nullification failed as even so much 
as an effectual protest against the power of a government 
of which General Jackson was the head, — never so sure 
he was right as when he was opposed; and a critical matter, 
of lasting importance, was decided. The federal govern¬ 
ment was conceded the power to determine the economic 
opportunities of the States. It was suffered to become a 


176 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

general providence, to which each part of the country 
must look for its chance to make lucrative use of its material 
resources. 

The slavery question, though it cut deeper into the social 
structure of a great section of the country and contained 
such heat as could not, when once given vent, be restrained 
from breaking into flame, as the tariff controversy had been, 
was, after all, a no more fundamental question, in its first 
essential form, than the question of the tariff. Could 
Congress exclude slavery from the territories of the United 
States and from newly formed States ? If it could, mani¬ 
festly the slavery system, once restricted in territory, would 
in time die of the strictures which bound it. Mr. Lincoln 
was quite right when he said that no nation could exist 
half slave and half free. But that was only by consequence. 
The immediate question was the power of Congress to 
determine the internal social and economic structure of 
society in the several States thereafter to be formed. It 
is not to my present purpose to trace the circumstances and 
influences which brought on the Civil War. The abolition of 
slavery by war, though natural, was not the necessary or 
logical legal consequence of the contention that Congress 
legitimately possessed the power which it had exercised 
in the constitution of the Northwest Territory and in the 
enactment of the Missouri Compromise. What happened 
before the momentous struggle was over came about by 
the mere logic of human nature, under stress of human 
passion. What concerns me in the present discussion is 
that here, again, as in the building up of a fostering tariff, 
what turned out to be a far-reaching change in the very 
conception of federal power had as its central point of 
controversy the question of the powers of the States as 


THE STATES AND THE FEDERAL GOVERNMENT 177 


against the powers of the government at Washington. 
The whole spirit and action of the government were deeply 
altered in carrying that question one stage further towards 
a settlement. 

And I am particularly interested to point out that here 
again, as in the tariff question, it was an inevitable con¬ 
troversy, springing, not out of theory, not out of the uneasy 
ambition of statesmen, but out of mere growth and im¬ 
perious circumstance, out of the actual movement of 
affairs. Population was spreading over the great western 
areas of the country; new communities were forming, upon 
which lawyers could lay no binding prescriptions as to the 
life they should lead; new Territories were constantly to 
be organized, new States constantly to be admitted to the 
Union. A choice which every day assumed new forms 
was thrust upon Congress. Events gave it its variety, and 
Congress could not avoid the influences of opinion, which 
altered as circumstances changed, as it became more and 
more clear what the nation was to be. It was of the very 
stuff of daily business, forced upon Congress by the opinion 
of the country, to answer the inevitable question, What 
shall these new communities be allowed to do with them¬ 
selves, what shall they be suffered to make of the nation? 
May Congress determine, or is it estopped by the reserved 
powers of the States ? The choices of growth cannot be 
postponed, and they seem always to turn upon some defini¬ 
tion of the powers of Congress, some new doubt as to where 
the powers of the States leave off and the powers of the 
federal government begin. 

(And now the question has come upon us anew. It is no ' 
longer sectional, but it is all the more subtle and intricate, 
all the less obvious and tangible in its elements, on that 


N 


178 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


account. It involves, first or last, the whole economic 
movement of the age, and necessitates an analysis which has 
not yet been even seriously attempted. Which parts of 
the many sided processes of the nation’s economic develop¬ 
ment shall be left to the regulation of the States, which parts 
shall be given over to the regulation of the federal govern¬ 
ment ? I do not propound this as a mere question of choice, 
a mere question of statesmanship, but also as a question, 
a very fundamental question, of constitutional law. What, 
reading our Constitution in its true spirit, neither sticking 
in its letter nor yet forcing it arbitrarily to mean what we 
wish it to mean, shall be the answer of our generation, 
pressed upon by gigantic economic problems the solution 
of which may involve not only the prosperity but also the 
very integrity of the nation, to the old question of the 
distribution of powers between Congress and the States? 
For us, as for previous generations, it is a deeply critical 
question. The very stuff of all our political principles, of 
all our political experience, is involved in it. In this all 
too indistinctly marked field of right choice our statesman¬ 
ship shall achieve new triumphs or come to calamitous 
shipwreck.) 

The olcT theory of the sovereignty of the States, which 
used so to engage our passions, has lost its vitality. The 
war between the States established at least this principle, 
that the federal government is, through its courts, the final 
judge of its own powers. Since that stern arbitrament it 
would be idle, in any practical argument, to ask by what 
law of abstract principle the federal government is bound 
and restrained. Its power is “to regulate commerce be¬ 
tween the States,” and the attempts now made during every 
session of Congress to carry the implications of that power 


THE STATES AND THE FEDERAL GOVERNMENT 179 


beyond the utmost boundaries of reasonable and honest 
inference show that the only limits likely to be observed by 
politicians are those set by the good sense and conservative 
temper of the country. 

The proposed federal legislation with regard to the regu¬ 
lation of child labor affords a striking example. If the 
power to regulate commerce between the States can be 
stretched to include the regulation of labor in mills and 
factories, it can be made to embrace every particular of the 
industrial organization and action of the country. The 
only limitations Congress would observe, should the 
Supreme Court assent to such obvio usly absurd extrava- * 
gancies of interpretation, would be the limitations of 
opinion and of circumstance. 

"i It is important, therefore, to look at the facts and to v . 
understand the real character of the political and economic 
materials of our own day very clearly and with a statesman¬ 
like vision, as the makers of the Constitution understood 
the conditions they dealt with. If the jealousies of the 
colonies and of the little States which sprang out of them had 
not obliged the makers of the Constitution to leave the 
greater part of legal regulation in the hands of the States, 
it would have been wise, it would even have been,necessary, 
to invent such a division of powers as was actually agreed 
upon. It is not, at bottom, a question of sovereignty or 
of any other political abstraction; it is a question of 
vitality. Uniform regulation of the economic conditions 
of a vast territory and a various people like the United 
States would be mischievous, if not impossible. The states¬ 
manship which really attempts it is premature and unwise. 
Undoubtedly the recent economic development of the 
country, particularly the development of the last two 


180 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

decades, has obliterated many boundaries, made many 
interests national and common, which until our own day 
were separate and local; but the lines of these great changes 
we have not yet clearly traced or studiously enough con¬ 
sidered. To distinguish them and provide for them is the 
task which is to test the statesmanship of our generation; 
and it is already plain that, great as they are, these new 
combinations of interest have not yet gone so far as to 
make the States mere units of local government. Not our 
legal conscience merely, but our practical interests as well, 
call upon us to discriminate and be careful, with the care of 
men who handle the vital stuff of a great constitutional 
government. 

The United States are not a single, homogeneous com¬ 
munity. In spite of a certain superficial sameness which 
seems to impart to Americans a common type and point 
of view, they still contain communities at almost every 
stage of development, illustrating in their social and 
economic structure almost every modern variety of interest 
and prejudice, following occupations of every kind, in cli¬ 
mates of every sort that the temperate zone affords. This 
variety of fact and condition, these substantial economic 
and social contrasts, do not in all cases follow state lines. 
They are often contrasts between region and region rather 
than between State and State. But they are none the less 
real, and are in many instances permanent and ineradicable. 

From the first the United States have been socially and 
economically divided into regions rather than into States. 
The New England States have always been in most respects 
of a piece; the southern States have had always more 
interests in common than points of contrast; and the Middle 
States were so similarly compounded even in the day of 


THE STATES AND THE FEDERAL GOVERNMENT 181 

the erection of the government that they might without 
material inconvenience have been treated as a single eco¬ 
nomic and political unit. These first members of the Union 
did, indeed, have an intense historical individuality which 
made them easily distinguishable and rendered it impossible, 
had any one dreamed of it, to treat them as anything but 
what they were, actual communities, quick with a character 
and purpose of their own. Throughout the earlier process 
of our national expansion, States formed themselves, for 
the most part, upon geographical lines marked out by nature, 
within the limiting flood of great rivers or the lifted masses 
of great mountain chains, with here and there a mere 
parallel of latitude for frontier, but generally within plots 
of natural limit where those who set up homes felt some 
essential and obvious tie of political union draw them to¬ 
gether. In later years, when States were to be created 
upon the great plains which stretched their fertile breadths 
upon the broad mid-surfaces of the continent, the lines 
chosen for boundaries were those which had been run by 
the theodolite of the public surveyor, and States began to be 
disposed upon the map like squares upon a great chess¬ 
board, where the human pieces of the future game of politics 
might come to be moved very much at will and no distinct 
economic, though many social, varieties were to be noted 
among neighbor commonwealths. 

But, while division by survey instead of by life and 
historical circumstance no doubt created some artificial 
political divisions, with regard to which the old theories of 
separate political sovereignty seemed inapplicable enough, 
the contrasts between region and region were in no way 
affected; and resemblances were rendered no more strik¬ 
ing than the differences which remained. We have been 


182 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

familiar from the first with groups of States united in interest 
and character; we"have been familiar from the first, also, 
with groups of States contrasted by obvious differences 
of occupation and of development. These differences are 
almost as marked now as they ever were, and the vital 
growth of the nation depends upon our recognizing and 
providing for them. It will be checked and permanently 
embarrassed by ignoring them. 

We are too apt to think that our American political system 
is distinguished by its central structure, by its President and 
Congress and courts, which the Constitution of the Union 
set up. As a matter of fact, it is distinguished by its local 
structure, by the extreme vitality of its parts. It would be 
an impossibility without its division of powers. From the 
first America has been a nation in the making. It has come to 
maturity by the stimulation of no central force or guidance, 
but by an abounding self-helping, self-sufficing energy in 
its parts, which severally brought themselves into existence 
and added Themselves to the Union, pleasing first of all 
themselves in the framing of their laws and constitutions, 
not asking leave to exist and constitute themselves, but 
existing first and asking leave afterwards, self-originated, 
self-constituted, self-confident, self-sustaining, veritable 
communities, demanding only recognition. Communities 
develop, not by external but by internal forces. Else 
they do not live at all. Our commonwealths have not 
come into existence by invitation, like plants in a tended 
garden; they have sprung up of themselves, irrepressible, 
a sturdy, spontaneous product of the nature of men nur¬ 
tured in a free air. 

It is this spontaneity and variety, this independent and 
irrepressible life of its communities, that has given our 


THE STATES AND THE FEDERAL GOVERNMENT 183 


system its extraordinary elasticity, which has preserved it 
from the paralysis which has sooner or later fallen upon 
every people who have looked to their central government 
to patronize and nurture them. It is this, also, which has 
made our political system so admirable an instrumentality 
of vital constitutional understandings. Throughout these 
lectures I have described constitutional government as 
that which is maintained upon the basis of an intimate 
understanding between those who conduct government 
and those who obey it. Nowhere has it been possible to 
maintain such understandings more successfully or with 
a nicer adjustment to every variety of circumstance than 
in the United States. The distribution of the chief powers 
of government among the States is the localization and 
specialization of constitutional understandings; and this 
elastic adaptation of constitutional processes to the various 
and changing conditions of a new country and a vast area 
has been the real cause of our political success. 

The division of powers between the States and the federal 
government effected by our federal Constitution was the 
normal and natural division for this purpose. Under it 
the States possess all the ordinary legal choices that shape' 
a people’s life. Theirs is the whole of the ordinary field of 
law; the regulation of domestic relations and of the rela¬ 
tions between employer and employe, the determination 
of property rights and of the validity and enforcement of 
contracts, the definition of crimes and their punishment, 
the definition of the many and subtle rights and obligations 
which lie outside the fields of property and contract, the 
establishment of the laws of incorporation and of the rules 
governing the conduct of every kind of business. The pre¬ 
sumption insisted upon by the courts in every argument 


184 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


with regard to the powers of the federal government is 
that it has no power not explicitly granted it by the federal 
Constitution or reasonably to be inferred as the natural or 
necessary accompaniment of the powers there indisputably 
conveyed to it; but the presumption with regard to the 
powers of the States they have always held to be of exactly 
the opposite kind. It is that the States of course possess 
every power that government has ever anywhere exercised, 
except only those powers which their own constitutions 
or the Constitution of the United States explicitly or by 
plain inference withhold. They are the ordinary govern¬ 
ments of the country; the federal government is its instru¬ 
ment only for particular purposes. 

Congress is, indeed, the immediate government of the 
people. It does not govern the States, but acts directly 
upon individuals, as directly as the governments of the 
States themselves. It does not stand at a distance and look 
on, — to be ready for an occasional interference, — but 
is the immediate and familiar instrument of the people in 
everything that it undertakes, as if there were no States. 
The States do not stand between it and the people. It is as 
intimate as they in its contact with the affairs of the coun¬ 
try’s life. But the field of its action is distinct, restricted, 
definite. // 

We are not concerned in our present discussion with its 
powers as representative of the people in regulating the 
foreign affairs of the country. The discussion of the 
relation of the States to the federal government does not 
touch that field. About it there has never been doubt or 
debate. Neither is the power of the federal government 
to tax, or to regulate the military establishments of the 
country, any longer in dispute, even though the federal 


THE STATES AND THE FEDERAL GOVERNMENT 185 

government use its power to tax to accomplish many an 
indirect object of economic stimulation or control which 
touches the independent industrial choices of the States 
very nearly. The one source from which all debatable 
federal powers of domestic regulation now spring is the 
power to regulate commerce between the States. 

The chief object of the Union and of the revision of the 
Articles of Confederation which gave us our present federal 
Constitution was undoubtedly commercial regulation. It 
was not political but economic warfare between the States 
which threatened the existence of the new Union and made 
every prospect of national growth and independence 
doubtful, — the warfare of selfish commercial regulation. 
It was intended, accordingly, that the chief, one might 
almost say the only, domestic power of Congress in respect 
of the daily life of the people should be the power to regulate 
commerce. 

It seemed a power susceptible of very simple definition 
at the first. Only in our own day of extraordinary varia¬ 
tion from the older and simpler types of industry has it 
assumed aspects both new and without limit of variety. It 
is now no longer possible to frame any simple or compre¬ 
hensive definition of “commerce.” Above all is it difficult 
to distinguish the “commerce” which is confined within 
the boundaries of a single State and subject to its domestic 
regulation from that which passes from State to State and 
lies within the jurisdiction of Congress. The actual inter¬ 
change of goods, which, strictly speaking, is commerce, 
within the narrow and specific meaning of the term, is now 
so married to their production under our great modern 
industrial combinations, organization and community of 
interest have so obscured the differences between the several 


186 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


parts of business which once it was easy to discriminate, 
that the power to regulate commerce subtly extends its 
borders every year into new fields of enterprise and pries 
into every matter of economic effort. 

Added to this doubt and difficulty of analysis which makes 
it a constant matter of debate what the powers of Congress 
are is the growing dissatisfaction with the part the States 
are playing in the economic life of the day. They either 
let the pressing problems of the time alone and attempt no 
regulation at all, however loudly opinion and circumstance 
itself may call for it, or they try every half-considered 
remedy, embark upon a thousand experiments, and bring 
utter confusion upon the industry of the country by con¬ 
tradicting and offsetting each other’s measures. No two 
States act alike. Manufacturers and carriers who serve 
commerce in many States find it impossible to obey the 
laws of all, and the enforcement of the laws of the States 
in all their variety threatens the country with a new war of 
conflicting regulations as serious as that which made the 
Philadelphia convention of 1787 necessary and gave us a 
new federal Constitution. This conflict of laws in matters 
which vitally interest the whole country, and in which no 
State or region can wisely stand apart to serve any peculiar 
interest of its own, constitutes the greatest political danger 
of our day. It is more apt and powerful than any other 
cause to bring upon us radical and ill-considered changes. 
It confuses our thinking upon essential matters and makes 
us hasty reformers out of mere impatience. We are in 
danger of acting before we clearly know what we want or 
comprehend the consequences of what we do, — in danger 
of altering the character of the government in order to 
escape a temporary inconvenience. 


THE STATES AND THE FEDERAL GOVERNMENT 187 


We are an industrial people. The development of the 
resources of the country, the command of the markets of 
the world, is for the time being more important in our eyes 
than any political theory or lawyer’s discrimination of 
functions. We are intensely “ practical,” moreover, and 
insist that every obstacle, whether of law or fact, be swept 
out of the way. It is not the right temper for constitutional 
understandings. Too “practical” a purpose may give us 
a government such as we never should have chosen had 
we made the choice more thoughtfully and deliberately. 
We cannot afford to belie our reputation for political 
sagacity and self-possession by any such hasty processes as 
those into which such a temper of mere impatience seems 
likely to hurry us. 

The remedy for ill-considered legislation by the States, 
the remedy alike for neglect and mistake on the part of their 
several governments, lies, not outside the States, but within 
them. \The mistakes which ‘Ihey^l-lieinselves correct will 
sink deeper into the consciousness of their people than the 
mistakes which Congress may rush in to correct for them, 
thrusting upon them what they have not learned to desire. 
They will either themselves learn their mistakes, by such 
intimate and domestic processes as will penetrate very deep 
and abide with them in convincing force, or else they will 
prove that what might have been a mistake for other States 
or regions of the country was no mistake for them, and the 
country will have been saved its wholesome variety. In 
no case will their failure to correct their own measures 
prove that the federal government might have forced 
wisdom upon them. 

There is, however, something else that comes to the sur¬ 
face, and that explains not a little of our present dissatis- 


188 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


faction with state legislation upon matters of vital national 
importance. Their failure to correct their own processes 
may, in fact, prove that there is something radically wrong 
with the structure and operation of their governments, — 
that they have ceased to be sensitive and efficient instru¬ 
ments for the creation and realization of opinion, — the 
real function of constitutional governments. 

It is better to learp>the true political lesson than merely to 
improve business. There is something involved which is 
deeper than the mere question of the distribution of legisla¬ 
tive powers within our federal system. We have come to the 
test of those intimate and detailed processes of self-govern¬ 
ment to which it was supposed that our principles and our 
experience had committed us ; There are many evidences 
that we are losing confidence in our state legislatures, and 
yet it is evident that it is through them that we attempt all 
the more intimate measures of self-government. To lose 
faith in them is to lose faith in our very system of govern¬ 
ment, and that is a very serious matter. It is this loss of 
confidence in our local legislatures that has led our people 
to give so much heed to the radical suggestions of change 
made by those who advocate the use of the initiative and 
the referendum in our processes of legislation, the virtual 
abandonment of the representative principle, and the at¬ 
tempt to put into the hands of the voters themselves the 
power to initiate and negative laws, — in order to enable 
them to do for themselves what they have not been able 
to get satisfactorily done through the representatives they 
have hitherto chosen to act for them. 

Such doubts and such consequent proposals of reform 
should make us look deeper into this question than we have 
hitherto looked. It may turn out, upon examination, that 


THE STATES AND THE FEDERAL GOVERNMENT 189 

what we are really dissatisfied with is not the present dis¬ 
tribution of powers between the state and federal authorities, 
but the character of our state governments. If they were 
really governments by the people, we should not be dis¬ 
satisfied with them. We are impatient of state legislatures 
because they seem to us less representative of the thoughtful 
opinion of the country than Congress is. We know that 
our legislatures do not think alil^c, but we are not sure that 
our people do not think alike. If there is a real variety of 
opinion among our people in the several regions of the coun¬ 
try, we would be poor lovers of democratic self-government 
were we to. wish to see those differences overridden by £he 
majorities of a central legislature. It is to be hoped that 
we still sufficiently understand the real processes of political 
life to know that a growing country must grow, that opinion 
such as government can be based upon develops by experi¬ 
ence, not by authority, that a region forced is a region dis¬ 
satisfied, and that spontaneous is better, more genuine, 
more permanent, than forced agreement. 

The truth is that our state governments are, many of them, 
no longer truly representative governments. We are not, 
in fact, dissatisfied with local representative assemblies 
and the government which they impose; we are dissatisfied, 
rather, with regulations imposed by commissions and 
assemblies which are no longer representative. It is a 
large subject, of many debatable parts, and I can only touch 
upon it here, but the fact is that we have imposed an 
impossible task upon our voters, and that because it is im¬ 
possible, they do not perform it. It is impossible for the 
voters of any busy community actually to pick out or in 
any real sense choose the very large number of persons we 
call upon them under our present state constitutions to 


190 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


elect. They have neither the time nor the quick and easy 
means of cooperation which would enable them to make up 
the long lists of candidates for offices, local and national, 
upon which they are expected to act. They must of 
necessity leave the selection to a few persons who, from one 
motive or another, volunteer to make a business of it. 
These are the political bosses and managers whom the people 
obey and affect to despise. It is unjust to despise them. 
Under a system of innumerable nominations they are 
indispensable. A system of so-called popular elections 
like ours could not be operated successfully without them. 
But it is true that by their constant and professional atten- 
tioh to the business of nomination a real popular choice of 
candidates is done away with entirely, and that our state 
officers and legislators are in effect appointed, not elected. 
The question at an election is only which set of appointees 
shall be put into office, those appointed by the managers 
and bosses of this party or of that. It is this, whether our 
people are distinctly conscious of it or not, which has so 
seriously impaired their confidence in the state legislatures 
and which has made them look about for new means by 
which to obtain a real choice in affairs. 

Members of Congress are themselves voted for on the 
lists which the local managers prepare, are themselves ap¬ 
pointed to their candidacy as the candidates for local 
functions are, but, because they are relatively few in number, 
national attention is more or less concentrated upon them. 
There is a more general interest in their selection, by which 
party managers are sure to be somewhat checked and 
guided. After their election, moreover, they become 
members of an assembly highly organized and disciplined, 
and are under a very strict party responsibility in which 


THE STATES AND THE FEDERAL GOVERNMENT 191 


the personal force and character of the Speaker of the 
House play a greater part than their own. The man by 
whom they are led is scarcely less conspicuous as a national 
figure than the President himself, and ordinary members 
are but wheels in a great piece of machinery which is made 
sensitive to opinion in ways which local managers in no 
sort control. The opinion of the whole country beats upon 
them. The country feels, therefore, that, however selected, 
they are in some sense more representative, more to be 
depended on to register the thoughtful judgments of the 
country itself, than the members of state legislatures are. 

It is for this reason as much as for any other that the 
balance of powers between the States and the federal 
government now trembles at an unstable equilibrium, and 
we hesitate into which scale to throw the weight of our 
purpose and preference with regard to the legislation by 
which we shall attempt to thread the maze of our present 
economic needs and perplexities. It may turn out that 
what our state governments need is not to be sapped of their 
powers and subordinated to Congress, but to be reorganized 
along simpler lines which will make them real organs of 
popular opinion. A government must have organs; it 
cannot act inorganically, by masses. It must have a 
law-making body; it can no more make law through its 
voters than it can make law through its newspapers. 

It would be fatal to our political vitality really to strip 
the States of their powers and transfer them to the federal 
government. It cannot be too often repeated that it has 
been the privilege of separate development secured to the 
several regions of the country by the Constitution, and not 
the privilege of separate development only, but also that 
other more fundamental privilege that lies back of it, the 


192 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


privilege of independent local opinion and individual 
conviction, which has given speed, facility, vigor, and cer¬ 
tainty to the processes of our economic and political growth. 
To buy temporary ease and convenience for the performance 
of a few great tasks of the hour at the expense of that would 
be to pay too great a price and to cheat all generations for 
the sake of one. 

Undoubtedly the powers of the federal government have 
grown, have even grown enormously, since the creation of 
the government; and they have grown for the most part 
without amendment of the Constitution. But they have 
grown in almost every instance by a processjsvhich must be 
regarded as perfectly normal and legitimate. The Consti¬ 
tution cannot be regarded as a mere legal document, to be 
read as a will or a contract would be. It must, of the 
necessity of the case, be a vehicle of life. As the life of the 
nation changes so must the interpretation of the document 
which contains it change, by a nice adjustment, determined, 
not by the original intention of those who drew the paper, 
but by the exigencies and the new aspects of life itself. 
Changes of fact and alterations of opinion bring in their 
train actual extensions of community of interest, actual 
additions to the catalogue of things which must be included 
under the general terms of the law. The commerce of 
great systems of railway is, of course, not the commerce of 
wagon roads, the only land commerce known in the days 
when the Constitution was drafted. The common interests 
of a nation bound together in thought and interest and 
action by the telegraph and the telephone, as well as by the 
rushing mails which every express train carries, have a scope 
and variety, an infinite multiplication and intricate inter¬ 
lacing of which a simpler day can have had no conception. 


THE STATES AND THE FEDERAL GOVERNMENT 193 


Every general term of the Constitution has come to have a 
meaning as varied as the actual variety of the things which 
the country now shares in common. 

The character of the process of constitutional adaptation 
depends first of all upon the wise or unwise choice of 
statesmen, but ultimately and chiefly upon the opinion 
and purpose of the courts. The chief instrumentality by 
which the law of the Constitution has been extended to 
cover the facts of national development has of course been 
judicial interpretation, —the decisions of the courts. The 
process of formal amendment of the Constitution was made 
so difficult by the provisions of the Constitution itself that 
it has seldom been feasible to use it; and the difficulty of 
formal amendment has undoubtedly made the courts more 
liberal, not to say more lax, in their interpretation than they 
would otherwise have been. The whole business of adapta¬ 
tion has been theirs, and they have undertaken it with 
open minds, sometimes even with boldness and a touch of 
audacity. But, though they have sometimes been lax, 
though, they have sometimes yielded, it may be, to the 
pressure of popular agitation and of party interest, they 
have not often overstepped the bounds of legitimate ex- v 
tension. By legitimate extension I mean extension which 
does not change the character of the federal power, but only 
its items, — which does not make new kinds but only new 
particulars of power. Facts change and are taken care of, 
but principles do not change. 

The members of courts are necessarily men of their own 
generation: we would not wish to have them men of another. 
Constitutional law, as well as statesmanship, must look 
forward, not backward, and, while we should wish the 
courts to be conservative, we should certainly be deeply 


194 CONSTITUTIONAL GOVERNMENT IN UNITED STATES- 

uneasy were they to hold affairs back from their natural 
alteration. Change as well as stability may be conserva¬ 
tive. Conservative change is conservative, not of preju¬ 
dices, but of principles, of established purposes and con¬ 
ceptions, the only things which in government or in any 
other field of action can abide. Conservative progress is 
a process, not of revolution, but of modification. In our 
own case and in the matter now under discussion it consists 
in a slowly progressive modification and transfer of func¬ 
tions as between the States and the federal government 
along the lines of actual development, along the lines of 
actual and substantial alterations of interest and of that 
national consciousness which is the breath of all true amend¬ 
ment, — and not along lines of party or individual purpose, 
nor by way of desperate search for remedies for existing 
evils. 

No doubt, courts must “make” law for their own day, 
must have the insight which adapts law to its uses, rather 
than its uses to it, must sometimes venture upon decisions 
which have a certain touch of statesmanlike initiative in 
them. We shall often find ourselves looking to them for 
strong and fearless opinions. But there are two kinds of 
“strong” opinions, as a distinguished English jurist long 
ago pointed out. There are those which are strong with 
the strength of insight and intelligence and those which 
are strong with the mere strength of will. The latter sort 
all judges who act with conscience, mindful of their oaths of 
office, should eschew as they would eschew the actual break¬ 
ing of the law. That the federal courts should have such a 
conscience is essential to the integrity of our whole national 
action. Actual alterations of interest in the make-up of our 
national life, actual, unmistakable changes in our national 


THE STATES AND THE FEDERAL GOVERNMENT 195 


consciousness, actual modifications in our national activities 
such as give a new aspect and significance to the well- 
known purposes of our fundamental law, should, of course, 
be taken up into decisions which add to the number of 
things of which the national government must take cog¬ 
nizance and attempt to control. That is a function of 
insight and intelligence. The courage it calls for on the 
part of the courts is the courage of conviction. But they 
are, on the other hand, called on to display the more noble 
courage which defends ancient convictions and established 
principle against the clamor, the class interests, and the 
changeful moods of parties. They should never permit 
themselves wilfully to seek to find in the phrases of the 
Constitution remedies for evils which the federal govern¬ 
ment was never intended to deal with. 

(Moral and social questions originally left to the several y 1 
States for settlement can be drawn into the field of federal 
authority only at the expense of the self-dependence and 
efficiency of the several communities of which our complex 
body politic is made up. Paternal morals, morals enforced 
by the judgment and choices of the central authority at 
Washington, do not and cannot create vital habits or 
methods of life unless sustained by local opinion and pur¬ 
pose, local prejudice and convenience, — unless supported 
by local convenience and interest; and only communities 
capable of taking care of themselves will, taken together, 
constitute a nation capable of vital action and control. 

You cannot atrophy the parts without atrophying the whole. 
Deliberate adding to the powers of the federal government 
Iby sheer judicial authority, because the Supreme Court 
can no longer be withstood or contradicted in the States,L 
both saps the legal morality upon which a sound constitu- 


196 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


tional system must rest, and deprives the federal structure 
as a whole of that r vitality_which has given the Supreme 
Court itself its increase of power. It is the alchemy of 



It would certainly mean that we had acquired a new 
political temper, never hitherto characteristic of us, that 
we had utterly lost confidence in what we set out to do, 
were we now to substitute abolition for reform, — were we 
by degrees to do away with our boasted system of self- 
government out of mere impatience and disgust, like those 
who got rid of an instrument they no longer knew how 
to use. 

There are some hopeful signs that we may be about 
to return to the better way of a time when we knew how 
to restrict government and adapt it to our uses in accord¬ 
ance with principles we did not doubt, but adhered to with 
an ardent fervor which was the best evidence of youth and 
virility. We have long been painfully conscious that we 
have failed in the matter of city government. It is an age 
of cities, and if we cannot govern our cities, we cannot govern 
at all. For a little while we acted as if in despair. We 
began to strip our city governments of their powers and 
to transfer them to state commissions or back to the legis¬ 
latures of the States, very much as we are now stripping 
the States of their powers and putting them in the hands 
of federal commissions. The attempt was made to put 
the police departments of some of our cities, for example, 
in the hands of state officers, and to put the granting of 
city franchises back into the hands of the central legislature 
of the State, in the hope, apparently, that a uniform regula¬ 
tion of such things by the opinion of the whole State might 
take the place of corrupt control by city politicians. But 


THE STATES AND THE FEDERAL GOVERNMENT 197 


it did not take us long, fortunately, to see that we were 
moving in the wrong direction. We have now turned to 
the better way of reconsidering the whole question of the 
organization of city governments, and are likely within a 
generation to purify them by simplifying them, to moralize 
them by placing their government in the hands of a few 
persons who can really be selected by popular preference 
instead of by the private processes of nomination by party 
managers, and who, because few and conspicuous, can 
really be watched and held to a responsibility which they 
will honor because they cannot escape. 

It is to be hoped that we shall presently have the same 
light dawn upon us with regard to our state governments, 
and, instead of upsetting an ancient system, hallowed 
by long use and deep devotion, revitalize it by reorganiza¬ 
tion. And that, not only because it is an old system long 
beloved, but also because we are certified by all political 
history of the fact that centralization is not vitalization. 
Moralization is by life, not by statute; by the interior im¬ 
pulse and experience of communities, not by fostering 
legislation which is merely the abstraction of an experience 
which may belong to a nation as a whole or to many parts 
of it without having yet touched the thought of the rest 
anywhere to the quick. The object of our federal system 
is to bring the understandings of constitutional govern¬ 
ment home to the people of every part of the nation, to 
make them part of their consciousness as they go about 
their daily tasks. If we cannot successfully effect its ad¬ 
justments by the nice local adaptations of our older practice, 
we have failed as constitutional statesmen. 


VIII 


PARTY GOVERNMENT IN THE UNITED STATES 

In order to understand the organization and operation 
of parties in the United States, it is necessary to turn once 
more to the theory upon which our federal and, for that 
matter, our state governments, also, were constructed. 
They were, in their make-up, Whig inventions. At the time 
our national government was erected, the Whig party in 
England was engaged in a very notable struggle to curb 
and regulate the power of the Crown. The struggle had 
begun long before the revolution which cut our politics 
asunder from the politics of England, and that revolution 
itself was only an acute manifestation of the great forces 
which were at work among thoughtful Englishmen every¬ 
where. The revolution which separated America from 
England was part of a great Whig contest with the Crown 
for constitutional liberties. The leaders of that revolution 
held Whig doctrine; the greater Whig statesmen on the 
other side of the water recognized them as their allies and 
gave them their outspoken sympathy, perceiving that they 
were but fighting a battle which must sooner or later be 
fought in England, whether with arms or with votes and 
the more pacific strategy of politics. Every historian now 
sees that the radical changes made in the government of 
England during the nineteenth century were quickened 
and given assurance of success by the changes which had 
preceded them in America; that the leaders of the American 
198 


PARTY GOVERNMENT IN THE UNITED STATES 199 

Revolution had but taken precedence of the Whigs at home 
in bringing government into a new and responsible rela¬ 
tionship to the people who were its subjects. 

The theory of the Whigs in England did not go the length 
of seeking to destroy the power of the throne. It probably 
would not have gone that length in America if the throne „ 
had been on this side of the water, a domestic instead of a 
separate and distant power. The men in the old country 
to whom the American revolutionists showed the way 
sought only to offset the Crown with other influences, — 
influences of opinion acting through a reformed and purified 
representative chamber, whose consent not only should be 
necessary to the enactment of law, but the advice of whose 
leaders the king should find it necessary to heed; and the 
influences of judicial opinion acting through stable and 
independent courts. It was, as I have already pointed out, 
this theory of checks and balances, which I have called 
the Newtonian theory of government, that prevailed in 
the convention which framed the Constitution of the 
United States, — which prevailed over the very different 
theory of Hamilton, that government was not a thing which 
you could afford to tie up in a nice poise, as if it were to be 
held at an inactive equilibrium, but a thing which must 
every day act with straightforward and unquestionable 
power, with definite purpose and consistent force, choosing 
its policies and making good its authority, like a single 
organism, — the theory which would have seemed to Dar¬ 
win the theory of nature itself, the nature of men as well 
as the nature of animal organisms. Dominated by the 
immediate forces and aspirations of their own day, ruled in 
thought and action by the great contest in which they had 
found themselves engaged, to hold the royal power off from 


200 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

arbitrary interference with their interests and their liberties, 
they allowed themselves to become more interested in pro¬ 
viding checks to government than in supplying it with 
energy and securing to it the necessary certainty and con¬ 
sistency of action. They set legislature off against execu¬ 
tive, and the courts against both, separated the three in 
sphere and power, and yet made the agreement of all three 
necessary to the operation of the government. The boast 
of the writers in the Federalist was of the perfection with 
which the convention at Philadelphia had interpreted Whig 
theory and embodied Whig dynamics in the Constitution. 
Mr. Hamilton’s theory, that government was an affair of 
cooperative and harmonious forces, and that the danger of 
coordinate and coequal powers such as the framers of the 
Constitution had set up was that they might at their will 
pull in opposite directions and hold the government at a 
deadlock which no constitutional force could overcome and 
yet many situations might render inconvenient, if not hazard¬ 
ous, the temper and circumstances of the time gave public 
men little inclination to heed. Checks and balances were 
then the orthodox gospel of government. 

The most serious success of the convention in applying 
Whig theory to the government they were constructing 
was the complete separation of Congress and the executive 
which they effected. The English Whigs fought for long to 
oust the Crown from the power and intimate influence it 
had had in the House of Commons through its control of 
members’ seats and its corrupting power of patronage: 
they succeeded only in placing the leaders of the Commons 
itself in executive authority in the stead of the Crown. 
The real executive authority of the English government 
is vested in the ministers of the day, who are in effect a 


PARTY GOVERNMENT IN THE UNITED STATES 201 


committee of the House of Commons, and legislature and 
executive work together under a common party organiza¬ 
tion. The one is only an agency of the other: the ministers 
act for their party in the House. The separation of parlia¬ 
ment and the Crown which the reformers of the early part 
of the last century finally succeeded in effecting was not, in 
fact, a separation of the legislature from the executive, but 
only a separation of the real from the nominal executive. 
They entirely succeeded in making the king a modern 
“ constitutional” monarch, — a monarch, that is, who, not¬ 
withstanding the dignity with which he is still surrounded 
and the very considerable influence which he can still ex¬ 
ercise by reason of his station, his personal force, should he 
happen to have any, and his intimate access to the counsels 
of the executive ministry, merely “reigns” and does not 
govern. His choice of advisers the House of Commons 
dictates. But our constitution-makers did their work dur¬ 
ing the earlier part of the struggle, when it seemed merely 
a contest to offset the authority of the king with effectual 
checks, and long before it had become evident that the 
outcome would be the substitution of an executive which 
represented the popular house for one which did not. 
Having a free hand and a clean sheet of paper upon which 
to write, there was nothing to hinder the complete realiza¬ 
tion of their ideal. They succeeded in actually separating 
legislature and executive. 

It may be that circumstances rendered their success more 
complete than they had intended. There is no reason to 
believe that they meant actually to exclude the President 
and his advisers from all intimate personal consultation 
with the houses in session. No doubt the President and the 
members of his cabinet could with perfect legal propriety 


202 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


and without any breach of the spirit of the Constitution 
attend the sessions of either the House or the Senate and 
take part in their discussions, at any rate to the extent of 
answering questions and explaining any measures which 
the President might see fit to urge in the messages which 
the Constitution explicitly authorizes him to send to Con¬ 
gress. But after a few brief attempts to institute a practice 
of that kind, in the early days of General Washington’s 
administration, actual usage established another habit in 
respect of the intercourse between the executive and Con¬ 
gress, and later days have shown the houses very jealous 
of any attempt to establish such an intimacy. Executive 
officers would be most unwelcome in the houses. Their 
doors are shut against them. Only the door of a committee 
room here and there opens to receive them, and they enter 
only when they are invited. 

In what I have said in a previous lecture of the remarkable 
and, in some respects, unexpected development of the 
President’s influence and functions, I have already pointed 
out one of the most interesting and significant results of 
this absolute application of early Whig theory to the prac¬ 
tice of our government. Its result has been that, so far as 
sj the government itself is concerned^there is but one national 
voice in the country, and that is the voice of the President/; 
His isolation has quite unexpectedly been his exaltation. 
The House represents localities, is made up of individuals 
whose interest is the interest of separate and scattered 
constituencies, who are drawn together, indeed, under a 
master, the Speaker, but who are controlled by no national 
force except that of their party, a force outside the govern¬ 
ment rather than within it. The Senate represents in its 
turn regions and interests distinguished by many conflicting 


PARTY GOVERNMENT IN THE UNITED STATES 203 

and contrasted purposes, united only by exterior party 
organization and a party spirit not generated within the 
chamber itself. Only the President represents the country 
as a whole, and the President himself is cooperatively 
bound to the houses only by the machinery and discipline of 
party, not as a person and functionary, but as a member 
of an outside organization which exists quite independently 
of the executive and legislature. 

It is extraordinary the influence the early Whig theory 
of political dynamics has had amongst us and the far- 
reaching consequences which have ensued from it. It is 
far from being a democratic theory. It is, on the contrary, 
a theory whose avowed object, at any rate as applied in 
America, was to keep government at a sort of mechanical 
equipoise by means of a standing amicable contest among 
its several organic parts, each of which it seeks to make 
representative of a special interest in the nation. It is 
particularly intended to prevent the will of the people as a 
whole from having at any moment an unobstructed sweep 
and ascendency. And yet in every step we have taken 
with the intention of making our governments more demo¬ 
cratic, we have punctiliously kept to Whig mechanics. 
The process shows itself most distinctly and most sys¬ 
tematically in the structure of our state governments. 
We have supposed that the way to make executive offices 
democratic in character and motive was to separate them 
in authority,—to prescribe each officer’s duties by statute, 
however petty and naturally subordinate in kind those 
duties might be, to put it to the voter to elect him separately, 
and to make him responsible, not to any superior officer 
set over him, but only to the courts, — thus making him 
a law unto himself so far as any other official is concerned. 


204 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

So far have we carried the theory of checks and balances, 
the theory of the independence of the several organs of 
government. 

The operation of the system is worth looking into more 
closely for a moment. Not very long ago a mob of un¬ 
masked men rescued a prisoner with whom they sym¬ 
pathized from the sheriff of a county in one of our States. 
The circumstances of the rescue made it very evident that 
the sheriff had made no serious attempt to prevent the 
rescue. He had had reason to expect it, and had provided 
no sufficient armed guard for his prisoner. The case was 
so flagrant that the governor of the State wrote the sheriff 
a sharp letter of reprimand, censuring him very justly for 
his neglect of duty. The sheriff replied in an open letter 
in which he curtly bade the governor mind his own business. 
The sheriff was, he said, a servant of his county, responsible 
to its voters and not to the governor. And his impertinence 
was the law itself. The governor had no more authority 
over him than the youngest citizen. He was responsible 
only to the people of his own county, from whose ranks the 
mob had come which had taken his prisoner away from 
him. He could have been brought to book only by indict¬ 
ment and trial, — indictment at the instance of a district 
attorney elected on the same “ticket” with himself, by a 
grand jury of men who had voted for him, and trial by a 
petit jury of his neighbors, whose sympathy with the rescue 
might be presumed from the circumstances. This is Whig 
dynamics in its reductio ad particulam. It is a species of 
government in solution. 

It can be solidified and drawn to system only by the 
external authority of party, an organization outside the 
government and independent. of it. Not being drawn 


PARTY GOVERNMENT IN THE UNITED STATES 205 

together by any system provided in our constitutions, being 
laid apart, on the contrary, in a sort of jealous dispersion 
and analysis by Whig theory enacted into law, it has been 
necessary to keep the several parts of the government in 
some kind of workable combination by outside pressure, by 
the closely knit imperative discipline of party, a body that 
has no constitutional cleavages and is free to tie itself into 
legislative and executive functions alike by its systematic 
control of the personnel of all branches of the government. 

Fortunately, the federal executive is not dispersed into 
its many elements as the executive of each of our States is. 
The dispersion of our state executives runs from top to 
bottom. The governor has no cabinet. The executive 
officers of state associated with him in administration are 
elected as he is. Each refers his authority to particular 
statutes or particular clauses of the state constitution. 
Each is responsible politically to his constituents, the voters 
of the State, and, legally, to the courts and their juries. But 
in the federal government the executive is at least in itself 
a unit. Every one subordinate to the President is ap¬ 
pointed by him and responsible to him, both legally and 
politically. He can control the personnel and the action of 
the whole of the great “department” of government of 
which he is the head. The Whig doctrine is insisted on 
only with regard to dealings of the legislature with the 
executive, and of the legislature or the executive with the 
courts. The three great functions of government are not 
to be ,merged or even drawn into organic cooperation, but 
are to be balanced against one another in a safe counter¬ 
poise. They are interdependent but organically disasso¬ 
ciated; must cooperate, and yet are subject to no common 
authority. 


206 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

The way in which the several branches of the federal 
government have been separately organized and given 
efficiency in the discharge of their own functions has only 
emphasized their separation and jealous independence. 
The effective organization of the House under its committees 
and its powerful Speaker, the organization of the Senate 
under its steering committees, the consolidation of the 
executive under the authority of the President, only render 
it the more feasible and the more likely that these several 
parts of the government will act with an all too effective 
consciousness of their distinct individuality and dignity, 
their distinct claim to be separately considered and severally 
obeyed in the shaping and conduct of affairs. They are 
not to be driven, and there is no machinery of which the 
Constitution knows anything by which they can be led and 
combined. 

It is for that reason that we have had such an extraordi¬ 
nary development of party authority in the United States 
and have developed outside the government itself so elab¬ 
orate and effective an organization of parties. They are 
absolutely necessary to hold the things thus disconnected 
and dispersed together and give some coherence to the 
action of political forces. There are, as I have already 
explained in another connection, so many officers to be 
elected that even the preparation of lists of candidates is 
too complicated and laborious a business to be undertaken 
by men busy about other things. Some one must make a 
profession of attending to it, must give it system and method. 
A few candidates for a few conspicuous offices which inter¬ 
ested everybody, the voters themselves might select in the 
intervals of private business; but a multitude of candidates 
for offices great and small they cannot choose; and after 


PARTY GOVERNMENT IN THE UNITED STATES 207 

they are chosen and elected to office they are still a multi¬ 
tude, and there must be somebody to look after them in 
the discharge of their functions, somebody to observe 
them closely in action, in order that they may be assessed 
against the time when they are to be judged. Each has 
his own little legal domain; there is no interdependence 
amongst them, no interior organization to hold them to¬ 
gether. There must, therefore, be an exterior organization, 
voluntarily formed and independent of the law, whose 
object it shall be to bind them together in some sort of 
harmony and cooperation. That exterior organization 
is the political party. The hierarchy of its officers must 
supply the place of a hierarchy of legally constituted 
officials. 

Nowhere else is the mere maintenance of the machinery 
of government so complex and difficult a matter as in the 
United States. It is not as if there were but a single 
government to be maintained and officered. There are 
the innumerable offices of States, of counties, of townships, 
of cities, to be filled; and it is only by elections, by the 
filling of offices, that parties test and maintain their hold 
upon public opinion. Their control of the opinion of the 
nation inevitably depends upon their hold on the many 
localities of which it is made up. If they lose their grip 
upon the petty choices which affect the daily life of counties 
and cities and States, they will inevitably lose their grip 
upon the greater matters, also, of which the action of the 
nation is made up. Parties get their coherence and pres¬ 
tige, their rootage and solidity, their mastery over men and 
events, from their command of detail, their control of the 
little tides that eventually flood the great channels of 
national action. No one realizes more completely the inter- 


208 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


dependence of municipal, state, and federal elections than 
do the party managers. Their parties cannot be one 
thing for the one set of elections and another for the other; 
and the complexity of the politician's task consists in the 
fact that, though from his point of view interdependent 
and intimately connected, the constantly recurring elections 
of a system under which everybody is elected are variously 
scattered in time and place and object. 

We have made many efforts to separate local and na¬ 
tional elections in time in order to separate them in spirit. 
Many local questions upon which the voters of particular 
cities or counties or States are called upon to vote have no 
connection whatever either in principle or in object with 
the national questions upon which the choice of congress¬ 
men and of presidential electors should turn. It is ideally 
desirable that the voter should be left free to choose the 
candidates of one party in local elections and the candidates 
of the opposite party in national elections. It is un¬ 
doubtedly desirable that he should go further and separate 
matters of local administration from his choice of party 
altogether, choosing his local representatives upon their 
merits as men without regard to their party affiliations. 
We have hopefully made a score of efforts to obtain “ non- 
partisan" local political action. But such efforts always in 
the long run fail. Local parties cannot be one thing for 
one purpose and another for another without losing form 
and discipline altogether and becoming hopelessly fluid. 
Neither can parties form and re-form, now for this purpose 
and again for that, or be for one election one thing and for 
another another. Unless they can have local training and 
constant rehearsal of their parts, they will fail of coherent 
organization when they address themselves to the business 


PARTY GOVERNMENT IN THE UNITED STATES 209 

of national elections. For national purposes they must 
regard themselves as parts of greater wholes, and it is 
impossible under such a system as our own that they should 
maintain their zest and interest in their business if their 
only objects are distant and general objects, without local 
rootage or illustration, centering in Congress and utterly 
disconnected with anything that they themselves handle. 
Local offices are indispensable to party discipline as rewards 
of local fidelity, as the visible and tangible objects of those 
who devote their time and energy to party organization and 
undertake to see to it that the full strength of the party vote 
is put forth when the several local sections of the party are 
called upon to unite for national purposes. If national 
politics are not to become a mere game of haphazard 
amidst which parties can make no calculations whatever, 
systematic and disciplined connections between local and 
national affairs are imperative, and some instrument must 
be found to effect them. Whatever their faults and abuses, 
party machines are absolutely necessary under our existing 
electoral arrangements, and are necessary chiefly for keep¬ 
ing the several segments of parties together. No party 
manager could piece local majorities together and make up 
a national majority, if local majorities were mustered upon 
non-partisan grounds. No party manager can keep his 
lieutenants to their business who has not control of local 
nominations. His lieutenants do not expect national 
rewards: their vital rootage is the rootage of local oppor¬ 
tunity. 

Just because, therefore, there is nowhere else in the world 
so complex and various an electoral machinery as in the 
United States, nowhere else in the world is party machinery 
so elaborate or so necessary. It is important to keep this in 


210 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

mind. Otherwise, when we analyze party action, we shall fall 
into the too common error of thinking that we are analyzing 
disease. As a matter of fact, the whole thing is just as nor¬ 
mal and natural as any other political development. The 
part that party has played in this country has been both 
necessary and beneficial, and if bosses and secret managers 
are often undesirable persons, playing their parts for their 
own benefit or glorification rather than for the public good, 
they are at least the natural fruits of the tree. It has borne 
fruit good and bad, sweet and bitter, wholesome and corrupt, 
but it is native to our air and practice and can be uprooted 
only by an entire change of system. 

All the peculiarities of party government in the United 
States are due to the too literal application of Whig doctrine, 
to the infinite multiplication of elective offices. There are 
two things to be done for which we have supplied no ade¬ 
quate legal or constitutional machinery: there are thou¬ 
sands of officials to be chosen and there are many disconnected 
parts of government to be brought into cooperation. “It 
may be laid down as a political maxim that whatever 
assigns to the people a power which they are naturally 
incapable of wielding takes it away from them.” They 
have, under our Constitution and statutes, been assigned 
the power of filling innumerable elective offices; they are 
incapable of wielding that power because they have neither 
the time nor the necessary means of cooperative action; 
the power has therefore been taken away from them, not 
by law but by circumstances, and handed over to those 
who have the time and the inclination to supply the neces¬ 
sary organization; and the system of election has been 
transformed into a system of practically irresponsible 
appointment to office by private party managers, — irre- 


PARTY GOVERNMENT IN THE UNITED STATES 211 

sponsible because our law has not yet been able to devise 
any means of making it responsible. It may also be laid 
down as a political maxim that when the several chief 
organs of government are separated by organic law and 
offset' against each other in jealous seclusion, no common 
legal authority set over them, no necessary community of 
interest subsisting amongst them, no common origin or 
purpose dominating them, they must of necessity, if united 
at all, be united by pressure from without; $,nd they must 
be united if government is to proceed. They cannot remain 
checked and balanced against one another; they must act, 
and act together. They must, therefore, of their own will 
or of mere necessity obey an outside master. 

Both sets of dispersions, the dispersion of offices and the 
dispersion of functions and authorities, have cooperated 
to produce our parties, and their organization. Through 
their caucuses, their county conventions, their state con¬ 
ventions, their national conventions, instead of through 
legislatures and cabinets, they supply the indispensable 
means of agreement and cooperation, and direct the govern¬ 
ment of the country both in its policy and in its personnel. 
Their local managers make up the long and variegated 
lists of candidates made necessary under our would-be 
democratic practice; their caucuses and local conventions 
ratify the choice; their state and national conventions 
add declarations of principle and determine party policy. 
Only in the United States is party thus a distinct authority 
outside the formal government, expressing its purposes 
through its own separate and peculiar organs and permitted 
to dictate what Congress shall undertake and the national 
administration address itself to. Under every other system 
of government which is representative in character and 


212 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


which attempts to adjust the action of government to the 
wishes and interests of the people, the organization of 
parties is, in a sense, indistinguishable from the organs of 
the government itself. Party finds its organic lodgment 
in the national legislature and executive themselves. The 
several active parts of the government are closely united 
in organization for a common purpose; because they are 
under a common direction and themselves constitute the 
machinery of party control. Parties do not have to supply 
themselves with separate organs of their own outside the 
government and intended to dictate its policy, because such 
separate organs are unnecessary. The responsible organs 
of government are also the avowed organs of party. The 
action of opinion upon them is open and direct, not cir¬ 
cuitous and secret. 

It is interesting to observe that as a consequence the dis¬ 
tinction we make between “ politicians ” and “ statesmen ” is 
peculiarly our own. In other countries where these words 
or their equivalents are used, the statesman differs from 
the politician only in capacity and in degree, and is dis¬ 
tinguished as a public leader only in being a greater figure 
on the same stage, whereas with us politicians and states¬ 
men differ in kind. A politician is a man who manages 
the organs of the party outside the open field of govern¬ 
ment, outside executive offices and legislative chambers, 
and who conveys the behests of party to those who hold the 
offices and make laws; while the statesman is the leader of 
public opinion, the immediate director (under the politi¬ 
cians) of executive or legislative policy, the diplomat, the 
recognized public servant. The politician, indeed, often 
holds public office and attempts the role of statesman as well, 
but, though the roles may be combined, they are none the 


PARTY GOVERNMENT IN THE UNITED STATES 213 

less sharply distinguishable. Party majorities which are ac¬ 
tually in control of the whole legislative machinery, as party 
majorities in England are, determine party programs by 
the use of the government itself, — their leaders are at once 
“politicians” and “statesmen”; and, the function being 
public, the politician is more likely to be swallowed up 
in the statesman. But with us, who affect never to allow 
party majorities to get in complete control of governmental 
machinery if we can prevent it by constitutional obstacles, 
party programs are made up outside legislative chambers, 
by conventions constituted under the direction of inde¬ 
pendent politicians, — politicians, I mean, who are, at 
any rate in respect of that function, independent of the 
responsibilities of office and of public action; and these 
independent conventions, not charged with the responsi¬ 
bility of carrying out their programs, actually outline the 
policy of administrations and dictate the action of Congress, 
the irresponsible dictating to the responsible, and so, it 
may be, destroying the very responsibility itself. “The 
peculiarities of American party government are all due to 
this separation of party management from direct and 
immediate responsibility for the administration of the 
government.” 

The satisfactions of power must be very great to attract 
so many men of unusual gifts to attempt the hazardous 
and little honored business of party management. We 
have made it necessary that we should have “bosses” and 
that they and their lieutenants should assign offices by 
appointment, but it is a very difficult and precarious 
business which they undertake. It is difficult and hazard¬ 
ous not only because it is irregular and only partially pro¬ 
tected by law, but also because the people look askance 


214 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


at it and often with a sudden disgust turn upon it and 
break it up, for a little while rendering it impossible. The 
reason for these occasional outbursts of discontent and 
resentment is evident and substantial enough. They come 
when the people happen to realize that under existing party 
machinery they have virtually no control at all over nomi¬ 
nations for office, and that, having no real control over the 
choice of candidates, they are cut off from exercising real 
representative self-government, — that they have been 
solemnly taking part in a farce. But their revolt is only 
fitful and upon occasion. Reform associations arise, com¬ 
mittees of fifty or seventy or a hundred are formed to set 
matters right and put government back into the hands of the 
people, but it is always found that no one can successfully 
supplant the carefully devised machinery of professional 
politicians without taking the same pains that they take, 
without devoting to the business the time and the enthusiasm 
for details which they devote to it, or supplant the politicians 
themselves without forming rival organizations as com¬ 
petent as theirs to keep an eye on the whole complicated 
process of elections and platforms, without, in short, them¬ 
selves becoming in their turn professional politicians. It 
is an odd operation of the Whig system that it should make 
such party organizations at once necessary and disreputable, 
and I should say that in view of the legal arrangements which 
we have deliberately made, the disrepute in which profes¬ 
sional politicians are held, is in spirit highly unconstitutional. 

There can be and there need be no national boss like the 
local bosses of States and cities, because federal patronage 
is not distributed by election. Local bosses commonly 
control the selection of members of Congress because the 
congressional districts are local, and members of Congress are 


PARTY GOVERNMENT IN THE UNITED STATES 215 

voted for by local ticket; but they cannot control federal 
appointments without the consent of the President. By 
the same token, the President can, if he chooses, become 
national boss by the use of his enormous patronage, doling 
out his local gifts of place to local party managers in return 
for support and cooperation in the guidance and control of 
his party. His patronage touches every community in the 
United States. He can often by its use disconcert and even 
master the local managers of his own party by combining 
the arts of the politician with the duties of the statesman, 
and he can go far towards establishing a complete personal 
domination. He can even break party lines asunder and 
draw together combinations of his own devising. It is 
against this that our national civil service laws have been 
wisely directed. 

But what really restrains him is his conspicuous position 
and the fact that opinion will hold him responsible for 
his use of his patronage. Local bosses are often very 
obscure persons. To the vast majority of the voters they 
are entirely unknown, and it is their desire to be as little 
in evidence as possible. They are often not themselves 
office-holders at all, and there is no way in which by mere 
elective processes they can be held responsible. But the 
President's appointments are public, and he alone by con¬ 
stitutional assignment is responsible for them. Such open 
responsibility sobers and restrains even where principle is 
lacking. Many a man who does not scruple to make in 
private political arrangements which will serve his own 
purposes will be very careful to be judicious in every act 
for which he is known to be singly responsible. Respon¬ 
sible appointments are always better than irresponsible. 
Responsible appointments are appointments made under 


216 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

scrutiny; irresponsible appointments are those made by 
private persons in private. 

The machinery of party rule is nominally representative. 
The several assemblies and conventions through which the 
parties operate are supposed to be made up of delegates 
chosen by the voters of the party, to speak for them with 
a certain knowledge of what they want and expect. But 
here again the action of the voters themselves is hardly 
more than nominal. The lists of delegates are made up by 
the party managers as freely in all ordinary circumstances 
as are the lists of the candidates in whose selection they 
concur. To add the duty of really selecting delegates to 
the duty of selecting men for office already laid upon our 
voters by law would be only to add to the impossibility 
of their task, and to their confusion if they attempted to 
perform it. When difficulties arise in the process, rival 
bodies of delegates can always be chosen, and then the 
managing committees who are in charge of the party’s 
affairs — the county committee, the state committee, or 
the national committee — can dictate which of the con¬ 
testing delegations shall be admitted, which shall have their 
credentials accepted. It is to this necessity we have been 
brought by farming the functions of government out to 
outside parties. We have made the task of the voter 
hopeless and therefore impossible. 

And yet at the best the control which party exercises 
over government is uncertain. There can be, whether for 
the voter or for the managing politician himself, little more 
than a presumption that what party managers propose and 
promise will be done, for the separation of authority be¬ 
tween the several organs of , government itself still stands 
in the way. Government is still in solution, and nothing 


PARTY GOVERNMENT IN THE UNITED STATES 217 

may come to crystallization. But we may congratulate 
ourselves that we have succeeded as well as we have in giving 
our politics unity and coherence. We should have drifted 
sadly, should much oftener have been made to guess what 
the course of our politics should be, had we not constructed 
this singular and, on the whole, efficient machinery by which 
we have in all ordinary seasons contrived to hold the per¬ 
sonnel and the policy of our government together. 

Moreover, there is another use which parties thus thor¬ 
oughly organized and universally active have served among 
us which has been of supreme importance. It is clear that 
without them it would hardly have been possible for the 
voters of the country to be united in truly national judg¬ 
ments upon national questions. For a hundred years or 
more we have been a nation in the making, and it would 
be hard to exaggerate the importance of the nationalizing 
influence of our great political parties. Without them, in 
a country so various as ours, with communities at every 
stage of development, separated into parts by the sharpest 
economic contrasts and social differences, with local prob¬ 
lems and conditions of their own which seemed to give them 
a separate interest very difficult to combine with any other, 
full of keen rivalries and here and there cut athwart by 
deep-rooted prejudices, national opinions, national judg¬ 
ments, could never have been formulated or enforced with¬ 
out the instrumentality of well-disciplined parties which 
extended their organization in a close network over the 
whole country, and which had always their desire for office 
and for the power which office brings to urge as their conclu¬ 
sive reason, — a reason which every voter could understand, 
— why there should be agreement in opinion and in program 
as between section and section, whatever the temptation 


218 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


to divide and act separately, as their conclusive argument 
against local interest and preference. If local and national 
politics had ever been for long successfully divorced, this 
would have been impossible. 

Students of our politics have not always sufficiently 
recognized the extraordinary part political parties have 
played in making a national life which might otherwise 
have been loose and diverse almost to the point of being 
inorganic a thing of definite coherence and common purpose. 
There is a sense in which our parties may be said to have 
been our real body politic. Not the authority of Congress, 
not the leadership of the President, but the discipline and 
zest of parties, has held us together, has made it possible 
for us to form and to carry out national programs. It is not 
merely that the utmost economic diversity has marked the 
development of the different parts of the country, and that 
their consciousness of different and even rival and conflicting 
interests has rendered the sympathy between them imperfect, 
the likelihood of antagonism very great indeed. There have 
been social differences, also, quite as marked. These social 
differences were no doubt themselves founded in economic 
diversity, but they cut much deeper than mere economic 
diversity of itself could have cut and made real sympathy 
unnatural, spontaneous cooperation between the portions 
of the country which they had offset against one another 
extremely difficult, and, in the absence of party discipline, 
extremely unlikely. The social contrast between the 
North and South before the Civil War will occur to every 
one? — a contrast created, of course, by the existence of 
the slave system in the South and deepened and elaborated 
by many another influence, until the political partnership 
of the two regions became at last actually impossible. 


PARTY GOVERNMENT IN THE UNITED STATES 219 


And yet there was no exclusive southern party, no exclusive 
northern party, until the war itself came. Until then each 
national party had a strong and loyal following both North 
and South, and seemed to be conscious of no sectional lines 
which need prevent cordial cooperation. The very interest 
which a section with peculiar needs and objects of its own 
had in maintaining its proportional influence in the direc¬ 
tion of the policy of the general government, in order both 
to protect itself and to further such measures conceived in 
its own interest as it could induce the partners to concede, 
made it gager to escape actual political isolation and keep 
its representation in national party counsels. 

And, though the contrast between the South with 
slavery and the other portions of the country without it 
was the sharpest and most dangerous contrast that our 
history has disclosed, many another crisis in our affairs 
has been accentuated by differences of interest and of point 
of view almost as great. The feeling of the communities 
beyond the Alleghanies towards the communities by the 
Atlantic seaboard throughout all the time when foreign 
powers owned the southern outlet of the great valley of 
the Mississippi; the feeling of the communities of the 
plains towards the communities to the eastward which 
seemed to grudge them their development and to prefer the 
interest of the manufacturer to the interest of the farmer; 
the feeling of the mining camps towards the regions of 
commerce and of all the old order which got their wealth 
but did not understand or regard their wishes in matters 
of local regulation and self-government; the circumstances 
in which Territories were set up and the heats in which States 
were forged, — these have been the difficulties and hazards 
of our national history, and it has been nothing less than a 


220 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 

marvel how the network of parties has taken up and broken 
the restless strain of contest and jealousy, like an invisible 
network of kindly oil upon the disordered waters of the sea. 

It is in this vital sense that our national parties have been 
our veritable body politic. The very compulsion of selfish¬ 
ness has made them serviceable; the very play of self- 
interest has made them effective. In organization was 
their strength. It brought them the rewards of local office, 
the command of patronage of many kinds, the detailed control 
of opinion, the subtle mastery of every force of growth and 
expansion. They strove for nothing so constantly or so 
watchfully as for the compact, cooperative organization and 
action which served to hold the nation in their hands. 

But we have come within sight of the end of the merely 
nationalizing process. Contrasts between region and 
region become every year less obvious, conflicts of interest 
less acute and disturbing. Party organization is no longer 
needed for the mere rudimentary task of holding the ma¬ 
chinery together or giving it the sustenance of some com¬ 
mon object, some single cooperative motive. The time is 
at hand when we can with safety examine the network of 
party in its detail and change its structure without im¬ 
perilling its strength. This thing that has served us so 
well might now master us if we left it irresponsible. We 
must see to it that it is made responsible. 

I have already explained in what sense and for what 
very sufficient reasons it is irresponsible. Party organiza¬ 
tions appoint our elective officers, and we do not elect them. 
The chief obstacle to their reform, the chief thing that has 
stood in the way of making them amenable to opinion, 
controllable by independent opposition, is the reverence 
with which we have come to regard them. By binding us 


PARTY GOVERNMENT IN THE UNITED STATES 221 

together at moments of crisis they have won our affectionate 
fealty. Because the Republican party “ saved the Union,” 
a whole generation went by, in many parts of the country, 
before men who had acted with it in a time of crisis could 
believe it possible for any “gentleman” or patriot to break 
away from it or oppose it, whatever its policy and however 
remote from anything it had originally professed or under¬ 
taken. Because the Democratic party had stood for state 
rights and a power freely dispersed among the people, 
because it had tried to avoid war and preserve the old 
harmony of the sections, men of the same fervor of sym¬ 
pathy in other parts of the country deemed it equally 
incredible that any man of breeding or of principle could 
turn his back upon it or act with any other political organi¬ 
zation. The feeling lasted until lines of party division 
became equally fixed and artificial. But with changing 
generations feelings change. We are coming now to look 
upon our parties once more as instruments for progressive 
action, as means for handling the affairs of a new age. 
Sentimental reminiscence is less dominant over us. We are 
ready to study new uses for our parties and to adapt them 
to new standards and principles. 

The principle of change, if change there is to be, should 
spring out of this question: Have we had enough of the 
literal translation of Whig theory into practice, into con¬ 
stitutions? Are we ready to make our legislatures and 
our executives our real bodies politic, instead of our parties ? 
If we are, we must think less of checks and balances and 
more of coordinated power, less of separation of functions 
and more of the synthesis of action. If we are, we must 
decrease the number and complexity of the things the voter 
is called upon to do; concentrate his attention upon a few 


222 CONSTITUTIONAL GOVERNMENT IN UNITED STATES 


men whom he can make responsible, a few objects upon 
which he can easily centre his purpose; make parties his 
instruments and not his masters by an utter simplification 
of the things he is expected to look to. 

Every test of principle or of program returns to our 
original conception of constitutional government. Every 
study of party must turn about our purpose to have real 
representative institutions. Constitutional government 
can be vital only when it is refreshed at every turn of 
affairs by a new and cordial and easily attained understand¬ 
ing between those who govern and those who are governed. 
It can be maintained only by genuine common counsel; 
and genuine common counsel can be obtained only by 
genuine representative institutions. A people who know 
their minds and can get real representatives to express 
them are a self-governed people, the practised masters of 
constitutional government. 


INDEX 


Action, sobering to opinion, 39; al¬ 
lowed no vent becomes dangerous, 
40 

Acts of a session, The, not the product 
of common counsel, 103 

Adaptation, Process of constitutional, 
193 

Adjustment, The principle of the 
freest right and opportunity of, 
5-6; between the government and 
the individual, 18; between the 
government and the popular 
thought and need, 23-24; of the 
Constitution to the exigencies and 
new aspects of life, 192 

Advisers, Independent, in position to 
be masters, 139 

Agitation, fixed upon conviction, can¬ 
not be allayed, 37; free under 
popular government, 38; danger¬ 
ous where there are no suitable 
institutions, 39 

America, abounds in the vitality of 
variety, 51; economic and social 
contrasts in, do not follow state 
lines, 180; a nation in the making, 
182 

American Congress and English Par¬ 
liament originally of the same 
model, 82, 86 

American form of government, 40- 
44 

American political system distin¬ 
guished by the extreme vitality of 
its parts, 182 

American president and English 
king originally of the same model, 
82 

American Revolution, The, a part of 
the Whig contest for constitu¬ 
tional liberties, 198-99 

Appointments to office, a severe tax 
on the President, 79; federal, not 


controlled by bosses, 215; respon¬ 
sible and irresponsible, 215-16 

Assemblies, representative, Develop¬ 
ment of functions of, 11-15; essen¬ 
tial to a constitutional system, 24; 
need of, for discussion, 102, 103; 
need of genuine, 222 

Bagehot’s, Mr., compliment to Ameri¬ 
cans, 59 

Barons, The, and King John, at 
Runnymede, 2-3; contended for 
the privileges of a nation, 6, 7; 53 

Bill of Rights, The, a part of the 
written constitution of England, 
22; may be ignored by act of Par¬ 
liament, 144; defines rights as 
against the crown, not against Par¬ 
liament, 145 

Body politic, Parties our real, 218- 
20 

Boss, No national, 214 

Bosses and managers, Political, nomi¬ 
nate candidates, 190; required in 
party organization, 206-10; natu¬ 
ral fruits of the tree, 210; discon¬ 
tent with, 213-14; control selec¬ 
tion of members of Congress, 214- 
15 

British North America Act, The, 
146-47 

Bryce, James, on our constitutions, 
147 

Burke, on what a free government is, 
4; on American legislatures, 13 

Cabinet, The, an executive, not a 
political body, 76; two views of 
the character of the, 77 

Cabinet meetings deal only with 
larger matters of policy, not with 
details, 67 

Cabinet officers in line of succession 


223 




224 


INDEX 


for presidency, 64; more active 
than President in executing laws, 
66; are shut out from Congress, 
73; various sources whence drawn, 
75-76 

Canada, The constitution of, an Act 
of Parliament, 146-47 
Candidates named by political bosses 
and managers, 190; too numerous 
for voters to select, 206 
Caucus, of each party in the Senate, 
has its Committee on Committees, 
133; chairman of the majority, the 
leader of the Senate, 133-34; 
nearly the counterpart of the 
Speaker, 134 

Centralization not vitalization, 197 
Chase, Salmon P., Views of, on 
greenbacks, as Secretary of Treas¬ 
ury and as Chief Justice, 164 
Checks and balances, the orthodox 
gospel of government, 200; car¬ 
ried to extremes, 204; we must 
make less of, 221 

Child labor, Proposed federal legisla¬ 
tion on, 179 

China and Russia, military nations, 
subjugated from without, 28-29; 
people in, not conscious of a com¬ 
mon interest, 28; stagnation of 
peoples, 29 

Citizenship, Responsibility of, 23 
City government, Failure in, 196; 

reorganization in, 197 
Civil War, The, called the nation to 
consciousness and to action, 48; 
social contrast between North and 
South before, 218-19 
Cleveland, Mr., and his great role in 
affairs, 58; his second cabinet, 76 
Colonial charters superseded by state 
constitutions, 147 

Colonies, The, grown into states, 44; 
community of interest developed 
in, in struggle for independence, 
44; social and economic differences 
between, 45-46; operated under 
charters from the crown, 146; task 
of combining, 161 

Colonists, Capacity of the, for self- 
government, 27; community of 
interest among the, 44 


Commerce, state and interstate, 170- 
71,178-79; difficult to distinguish, 
185-86; of great railways not the 
commerce of wagon roads, 192 
Committee on Committees of each 
party in Senate, 133; influence of 
caucus chairman through, 134 
Committee on Rules of the House of 
Representatives, 93-95; controlled 
by the Speaker, 95 
Committees, Standing, of the House 
of Representatives, 89, 96; each, 
a miniature House, 97; minority 
representation on the, 97-98 
Commons, House of, see House of 
Commons 

Communities, develop by internal 
forces, 182; irrepressible life of our, 
182-83 

Community, What constitutes a, 26- 
27, 46; the character of a, cannot 
be presented, 53 

Conference committees of House and 
Senate, 106-7 

Congress, Some Presidents refused to 
lead, 70; overborne only because 
President has nation behind him, 
70-71; illegitimate means by 
which President may influence, 71; 
political powers of the President in 
his relations with, 72-73; meant to 
be a reformed parliament, 82; a 
part of the Government, 84, 85 ; 
making laws exclusive sphere of, 
85; alone among legislatures of the 
world in rejecting leadership of 
Government in legislation, 85 ; and 
Parliament had the same origin, 
82, 86; developed under a theory 
of checks and balances, takes part 
in governing, 86-87 ; organization 
of, unlike that of Parliament, 87; 
can exercise no powers except those 
conferred by the Constitution, 148— 
49; powers not granted to, re¬ 
main with the states, 149; no 
friction with the courts, 162; mem¬ 
bers of, and the decisions of federal 
judges, 163-64; general powers 
granted to, cover the life of the 
nation, 174-75; question of power 
of, to determine internal social and 



INDEX 


225 


economic structure of society in 
new States, 176-77; choices of 
growth forced upon, 177; limita¬ 
tions likely to be observed by, 179 ; 
is the immediate government of 
the people, 184; chief domestic 
power of, to regulate commerce, 
185; increasing complications of 
this power, 185-86; complete sepa¬ 
ration of, from the executive, 
200-1; subject to party dictation, 
211 

Congressional Record, The, disap¬ 
pointing, because lacking reality, 
105 

Constitution of the United States, 
The first eight amendments to the, 
a charter of liberties, 8-9; in¬ 
tended to be a copy of the govern¬ 
ment of England, 42; foresight and 
sagacity of framers of, 45; Mr. 
Bagehot on the, 59; as practical 
a document as Magna Carta, 60; 
not a mere lawyer’s document but 
a vehicle of life, 67-70; authorizes 
the President to recommend meas¬ 
ures to Congress, 72; bids him 
speak, 73; does not seem to make 
the President a prime minister, 77; 
statutes must conform to the, 147; 
tests of, may be applied in state 
courts, 155-56; the whole expan¬ 
sion of our national life has been 
read into, 157-58; courts deter¬ 
mine adequacy of, 167; read to 
meet needs of nation’s life, 169-70; 
what reading shall it now have? 
178; commercial regulation the 
chief object of the Union under, 
185; a vehicle of fife, 192; every 
general term of, has a varied mean¬ 
ing, 193; legitimate extension of, 
by judicial interpretation, 193 
Constitution, The makers of our fed¬ 
eral,followed the scheme expounded 
in Montesquieu, 56; Whig theo¬ 
rists but practical statesmen, 57; 
made the President only the legal 
executive with power of veto, 59- 
60; enacted efficient laws, 70; 
conceived our houses of Congress 
under a theory of checks and bal- 

Q 


ances, 86; foresight of, 173; left 
greater part of legal regulation to 
the States, 179; separated legis¬ 
lature from the executive, and 
courts from both, 199-201 
Constitutional Convention of 1787, 
The, did not see the influences mak¬ 
ing for change, 43; the federal 
state devised by, 46; Newtonian 
theory of government prevailed in, 
199; embodied Whig dynamics in 
the Constitution, 199-200; its 
most serious success, 200-1 
Constitutional government, see Gov¬ 
ernment, Constitutional 
Constitutional law, Our, broad and 
elastic, 57; must look forward, not 
backward, 193 

Constitutional questions may origi¬ 
nate in any court of any grade, 151 
Contrasts, Social, between sections of 
country, 218-20 

Conviction, Power of the impulses of, 
36-38 

Coordinated power, We must think 
more of, 221 

Counsel, and criticism never more 
needed, 102; common, is not 
jumbled, 103; compounded of 
many views in actual contact, 104 ; 
in committee rooms but not in the 
House, 103, 105; open, the essence 
of power, 110; common, main¬ 
tained only by genuine representa¬ 
tive institutions, 222 
Courts, The, 142-72; the ultimate 
safeguard of individual privilege 
and of governmental prerogative, 
142; the citizen’s safeguard against 
the abuse of power by the govern¬ 
ment, 143; men are individuals in 
respect of their rights only in, 143; 
have power to restrain the gov¬ 
ernment, 144; inference of, that 
laws shall be tested by the Consti¬ 
tution, 146; renders our system 
unique, 147; will not hear ab¬ 
stract questions, 147-48; instru¬ 
ments for the protection of the 
individual, 149; balance-wheel of 
the whole system, 142, 149; juris¬ 
diction of, 150-51; are the, as 



226 


INDEX 


available for the poor as for the 
rich? 152-54; average integrity 
of American, high, 153; processes 
in, complicated and expensive, 
153-54; all, branches of the peo¬ 
ple’s forum, 154; jurisdiction of 
federal and state, 155-57; bal¬ 
ance of our system lies in the fed¬ 
eral courts, 157; the statesman¬ 
ship of control lies in the, 157; 
German critics on our, 161; mem¬ 
bers of Congress and decisions of 
the, 163-64; no wiser than their 
judges, 165; Congress and the 
executive might manipulate to 
their own ends, 166; index of the 
nation’s character, 167; states¬ 
manship of adaptation expected 
of, 168; influence of Marshall in 
formative period of, 168; have met 
the needs of the nation’s life, 169- 
70; relation of, to opinion, 171- 
72; liberal interpretation of Con¬ 
stitution by, 193; the conscience 
and courage of, essential to con¬ 
servative progress, 194-95 

Courts, English, Broad and liberal 
rulings in the, 145 

Courts, the gauge of excellence of 
a constitutional government, 17- 
18 

Czar, A written constitution would 
not change the power of the, 2 

Darwin followed in all discussion of 
structure or development of things, 
55 

Darwin vs. Newton in development 
of political theories, 55-56 

Debate, not a creative process, 88; 
the means of common counsel, 
102-3; results of, 104; individ¬ 
ualizes men, 113 

Declaration of Independence, The, 
intensely practical, 4; takes rights 
for granted, 8 

Delegates, Rival bodies of, 216 

Democratic party, Reverence for the, 
221 

Despot, a creature of circumstances, 
20 

De Tocqueville, on the people of the 


colonies, 27; on the American citi¬ 
zen, 150 

Development, Privilege of separate, 
secured by the Constitution, 191— 
92 

Dicey, A. V., on our constitutions, 
147 

Differences in interest and character 
of groups of States, 180-82 

Discussion, Need of searching and 
constant, 102; newspaper, not of 
the necessary kind, 102-3; must 
be combined and compounded, 103 

Dissatisfaction with state legisla¬ 
tion, 186-88 

Documents, constitutional, The spirit 
of, 8-9 

Douglas, Stephen A., and Mr. Lin¬ 
coln, 62 

East, The, the most provincial part 
of the Union, 127 

East and North, regions of concen¬ 
tration, 116-17; a common habit 
and attitude in the, 118-19 

Economic conditions, Uniform regu¬ 
lation of, of our whole country im¬ 
possible, 179 

Economic development of country, 
has obliterated many boundaries, 
179-80; diversity in, 218 

Economic problems, to be solved, 
178 

Elections, Efforts to separate local 
and national, 208 

Electors, presidential, Provision for 
action of, 60-61 

Elizabeth, Queen, a mettlesome 
leader of a mettlesome race, 31; 
England’s suitable embodiment, 
32; a foolish woman but a great 
statesman, 32; a self-constituted 
leader, 34 

England, the mother of constitu¬ 
tional governments, The constitu¬ 
tion of, unwritten, 1; defined, 22; 
in the time of Elizabeth, 30-32; 
astir as never before, 31-32; came 
to her full consciousness as a na¬ 
tion, 32; prestige of, 34; political 
development of, dormant, 35; 
radical changes in government of, 



INDEX 


227 


the result of the American Revo¬ 
lution, 198-99 

English constitutional history cen¬ 
tred about development of Par¬ 
liament, 10 

English government, The ministers 
of the day the real executive in the, 
200-1 

English king and American President 
originally of the same model, 82 

English Parliament and American 
Congress originally of the same 
model, 82 

English politicians not clear theo¬ 
rists, 55 

Englishmen, The immemorial birth¬ 
right of, 2 

Executive, The, a new name for the 
Government, 15; subject to the 
laws, 24; and legislature in Eng¬ 
land united in counsel, 40; not 
necessarily so in the United States, 
41; in the hands of the Presi¬ 
dent, 107; must be made a real 
body politic, 221 

Executive, The federal, not dispersed 
into its many elements, 205; in 
itself a unit, 205 

Executive, the state, Dispersion of, 
from top to bottom, 205 

Federal government, see Government, 
Federal 

Federalist, The expositions of the, 
full of the theory of checks and 
balances, 56 

Filipinos can be given constitutional 
government but not self-govern¬ 
ment, 52-53 

Frederick the Great, and his making 
of Prussia into a nation, 33-34; 
leader as well as master, and self- 
constituted, 34 

French Revolution, The convictions 
of the, aroused plain men, 36 

Frontier, not traceable since 1890, 
48 

German criticism of our courts, 161, 
167 

Germanic feudal nation, Government 
as master in the early, 28 


Golden Bull, The, exacted by the 
Magyar nobles of Hungary, 6 
Government, of laws, and not of 
men, never existed, 17 
Government, Four stages and forms 
of development of, 28; govern¬ 
ment as master, 28-30; through 
sagacity and fitness, 30-37; the 
stage of agitation, 37-40; the 
leaders of the people become the, 
40-42; a living thing, accountable 
to Darwin, 56; no successful, with¬ 
out leadership, 57; two meanings 
of the term, 83; synthesis, not 
antagonism, the whole art of, 106; 
no sovereign, ever in America, 146; 
assumed by the people, 147; re¬ 
formed by the election of good 
men to conduct it, 165; every, of 
men not of laws, 165; must have 
organs, 191; Hamilton’s theory of, 
199-200; a species of, in solution, 
204; solidified by external au¬ 
thority of party, 204-5; mainten¬ 
ance of machinery of, complex and 
difficult, 207; functions of, farmed 
out to outside parties, 216; still 
in solution, 216-17 
Government, Constitutional, What is, 
1-24; a theory of politics, 1; defi¬ 
nition of, 2; had its rise at Runny- 
mede, 2; the history of, the history 
of political liberty, 3; philosophy 
of, 4; an instrumentality for the 
maintenance of liberty, 6; means 
for maintaining, 10; representa¬ 
tive bodies an indispensable part 
of a, 13-14; object of, 14, 18; ap¬ 
proach to the essence of, 15-16; 
a government of law, 17; has 
exalted the individual, 16, 18; the 
atmosphere of, that of opinion, 20, 
22; distinguished from an uncon¬ 
stitutional, 21-22; ultimate and 
essential objects of a, 23; essential 
elements and institutions of a, 
24; basis of a, 25; nothing but a 
community can have a, 26; four 
stages of development of, 28-42; 
full machinery of, dormant in Eng¬ 
land, 35; agitation the essence of, 
38; parliamentary English, and 



228 


INDEX 


American forms of, 40; not con¬ 
centrated in the federal govern¬ 
ment, 41; each state a separate, 
41; reasons for having a group of 
states united in a federal system, 
44; based upon common under¬ 
standings, interests, impulses, and 
habits, 46, 51; the states a great 
contribution to, 50; can be given 
the Filipinos, 52-53; how to study, 
82; counsel and criticism needed 
in business of, 102; regions as 
well as population must be repre¬ 
sented in a, 116-18; duty of 
statesmen to study right accom¬ 
modation of parts in, 140-41; 
President a controlling force in, 
141; exists in completeness when 
every individual is a partner of the 
government, 143; whole balance 
of our system lies in the federal 
courts, 157; the statesmanship of 
control vested in the courts, 157, 
168; interdependence of the sev¬ 
eral parts of a, 165-66; the only 
absolute safeguards of a, 166-67; 
our system of, a model of the reign 
of law, 172; the vital stuff of a, 
180; maintained on basis of inti¬ 
mate understanding between gov¬ 
ernment and governed, 183; the 
understandings of, must be brought 
home to the people, 197; we must 
return to original conception of, 
221-22 

Government, The Federal, and its 
powers, 41; organized in the face 
of local jealousies, 45; increase of 
its powers, 47; constructed on the 
Whig theory of checks and bal¬ 
ances, 54, 86, 198-99; has had a 
vital and normal organic growth, 
57; reaction of several parts of, 
upon one another, gives each its 
final form and character, 82; the 
active elements of, 99; leadership 
of each part of, 107; greatest 
power lies with part of, in closest 
touch with the nation, 109; that 
part is the President, 110; an indi¬ 
vidual can set up rights against, 
only in the courts, 143; restrained 


by the courts, 144; through the 
courts the final judge of its own 
powers, 157, 178; created by law, 
161; relation of the States to, 
the cardinal question, 173-74; 
conceded the power to determine 
economic opportunities of the 
States, 175-76; spirit and action 
of, altered, 177; has no power not 
explicitly granted or reasonably 
inferred, 184; debatable powers of, 
185; may not force wisdom upon 
the States, 187; normal and legiti¬ 
mate growth of powers of, 192; 
deliberate adding to, saps legal 
morality, 195; the executive in, a 
unit in itself, 205; three great func¬ 
tions of, subject to no common 
authority, 205; organization of 
branches of, emphasizes their sepa¬ 
ration, 206; disconnected parts 
of, to be brought into cooper¬ 
ation, 210; parts must act under 
direction of an outside master, 211 

Government of England governed 
by opinion of nation, not by the 
courts, 145, 161 

Governments are always govern¬ 
ments of men, 17; affected by 
agitation, 37-38; are what poli¬ 
ticians make them, 54 

Hamilton, Alexander, Theory of 
government, 199-200 

Hay, John, The frank professions of, 
received with doubt by foreign na¬ 
tions, 78 

Hayne-Webster debate, The, the 
central dramatic force of all our 
history, 48-49 

History, constitutional, The concern 
of, 9 

House of Commons, Demands of 
leaders of the, regarding laws sub¬ 
mitted, 12; leaders of political 
party controlling the, are heads of 
the executive and guides in legis¬ 
lation, 40, 200; ministries selected 
by the majority in, approved by 
the king, 42; makes and unmakes 
Governments, 84, 99; not the Gov¬ 
ernment, but its leaders are, 84; 



INDEX 


229 


exhausts its originative capacity in 
producing a ministry, 99; in this 
more effective than House of Rep¬ 
resentatives, 100, 101 

House of Representatives, The, 82- 
111; two points of view of, 83; 
contrasted with House of Com¬ 
mons, 83-85; and Senate jealously 
guard their right to initiate legis¬ 
lation, 86; and Senate naturally 
unlike, 87; once debated, now 
does not, 88; organized into stand¬ 
ing committees, charged with its 
business, 89; all bills referred to 
committees, and its business what 
committees choose to make it, 89- 
90; all committees appointed by 
the Speaker, 91-92; rules adopted 
by each new, 93-94; debates upon 
important bills, 95; controlled by 
party caucus of the majority, 95- 
96; talks in its committee rooms, 
96; originative force of, exhausted 
in making a Speaker, 99; over¬ 
burdened by its many committees, 
100; its independence and isola¬ 
tion a weakness, 101 organiza¬ 
tion of, admired, 102; needed dis¬ 
cussion and common counsel lack¬ 
ing in, 102-3; process of legisla¬ 
tion too much hidden, and people 
criticize, 105-6; relations of, with 
the Senate, 106-7, 109-10; no 
common leadership, 107; under 
command of its Speaker, 107, 202 ; 

—President may place, at a disad¬ 
vantage, 108; has silenced itself 
by its policy of independence, 109; 
has forfeited the office of gather¬ 
ing counsel and being the voice of 
the nation, 110-11; an organic 
unit, 112; represents chiefly the 
East and North, 117 ; no restraint 
on members of, regarding publicity 
of business done, 123; salaries 
paid to members of, not suffi¬ 
cient, 129; looked upon by the 
Senate as ephemeral, 136; per¬ 
sonnel of, changes rapidly, 136; 
represents localities with separate 
interests, 202; controlled by party, 
202; effective organization of, 206 


Hungary, The Golden Bull exacted 
by the Magyar nobles of, 6 

Independence in an organization is 
isolation and weakness, 101 

Individual, Liberties of the, in their 
adjustment to the law, 3; adjust¬ 
ment between the government and 
the, 5; the first fact of liberty, 16, 
17; exalted and honored by con¬ 
stitutional government, 18; stimu¬ 
lated, 19; protected, 24; rights of 
the, under our laws, 147-52; must 
take the initiative, 147 ; restrictions 
in favor of, 148-49 ; his own guard¬ 
ian, 150; in England as in America, 
151; must be afforded the oppor¬ 
tunity to protect himself, 154 

Individuality, More of, in South and 
West than in East and North, 
118-19; represented in the Senate, 
121-22 

Individuals, Congress acts upon, as 
directly as do state governments, 
184 

Initiative and referendum vs. repre¬ 
sentative assemblies, 104, 188 

Institution, An, merely an estab¬ 
lished practice, 14 

Institutions the creatures of opinion, 
22-23 

Institutions, Representative, see As¬ 
semblies 

Interests, The general, of the coun¬ 
try, under regulation of the federal 
government, 173-74; many new, 
180; wide scope and variety of, 
192; changes in, 194-95 

Jackson, Andrew, The presidency 
under, 58 ; overstepped the bounds 
in disregarding the Supreme Court, 
69, 159-60; never so sure he was 
right as when he was opposed, 175 

John, King, and the barons at Runny- 
mede, 2-3, 53 

Judges belong to their own genera¬ 
tion, 172, 193 

Judiciary, An independent and incor¬ 
ruptible, necessary, 17-18, 24; the 
balance-wheel of our entire sysem, 
142-43 





230 


INDEX 


Jurisdictions, Line between state and 
federal, 154-56, 171 

King, choice of ministry by English, 
now a mere form, 42; a reality 
when U. S. Constitution was 
framed, 43-44; restrained by a 
written compact, 161; a “consti¬ 
tutional” monarch, 201 

Labor, may Congress legislate on 
conditions of, 171 

Law, Constitutional government a 
government of, 17; stability and 
incorruptible efficacy of the, 24; 
the practical side of, its applica¬ 
tion, 85; is not autdmatic, 150 

Law, English and American, Theory 
of the, as to the individual, 18-19 ; 
as to the officer of government, 
19-20 

Law, federal, United States courts 
the ultimate judges of, 156 

Law, state, Courts of the states the 
ultimate judges of, 156 

Law-making bodies of England, No 
restraint upon the, known to their 
courts, 145 

Law-making bodies of U. S., Powers 
of, definitely defined, 145-46 

Laws, Development of the right of 
representative assemblies to make, 
12-13 ; abound in minute adminis¬ 
trative details, 15; a government 
of, and not of men, never existed, 
17; must be taken care of by the 
executive departments, 66; mak¬ 
ing of, exclusive sphere of Congress, 
85; conflict of, our greatest po¬ 
litical danger, 186 

Laws of England formulated by the 
ministers, 74 

Leader, The country craves a single, 
68 

Leaders, Two forms of government 
under, 40 

Leadership, and control must be 
lodged somewhere, 54; of the gov¬ 
ernment in the President, 66; be¬ 
longs to its executive officers, 72; 
no common, between House and 
Senate, 107 


Legal practice, English, the same as 
American, 151 

Legislation, Some presidents have 
refrained from directing, 72, 74; 
need of a national spokesman in, 
73; process of, too much hidden, 
105, 106; haphazard method of 
compounding, 107; lines between 
state and federal, in danger of 
obliteration, 171; ill-considered, 
by the States, 186-87 
Legislatures as law-making assem¬ 
blies, 10-11; Burke on, 13; enact 
impracticable laws, 39, 187-88; 
loss of confidence in, 188-89 ; must 
be made our real bodies politic, 
221 

Liberty, The ideals of, cannot be 
fixed, 4; an unalterable principle 
of, 5; belongs to the individual 
or it does not exist, 16; not com¬ 
munal, 18; the object of constitu¬ 
tional government, 18 
Liberty, Political, defined, 3-4; and 
illustrated, 5 

Life, the last and most authoritative 
critic, 70 

Life-processes, The, of making a na¬ 
tion, 48 

Lincoln, Mr., and his unique task 
and achievement, 58; the nomina¬ 
tion of, 62-63; on a nation half 
slave and half free, 176 
Local interest and preference, Con¬ 
clusive argument against, 217-18 
Louis XIV master in the developed 
feudal nation, 28 

Machinery, Complex electoral, makes 
party machinery necessary, 209 
Magna Carta, exacted of John at 
Runnymede, a document of defini¬ 
tion, 2; the immortal service of, 
3; renewals of, 7; merely safe¬ 
guards and regulates, 8; statement 
of individual right in, 22; may be 
ignored by Parliament, 144; de¬ 
fines rights against the crown not 
against Parliament, 145 
Magna Carta, The, of Hungary, 6 
Magyar nobles, The, of Hungary, 
exacted the Golden Bull, 6; con- 




INDEX 


231 


tended for the privileges of a class, 
6; provided no machinery for 
maintenance of the agreement, 
6-7 

Maine, Sir Henry, on the men who 
colonized America, 52 
Manufacturers find it impossible to 
obey laws of all the States, 186 
Marshall, John, as lawyer and states¬ 
man, 158-59; his interpretations 
the products of insight, 159; deci¬ 
sions of, ignored by Andrew Jack- 
son, 159-60; gave to our federal 
government its scope and power, 
168 

Massachusetts Bill of Rights, 17 
Members of Congress, General in¬ 
terest in selection of, 190; opinion 
of whole country beats upon, 191 
Messages of presidents to Congress, 
74 

Middle States constitute a single eco¬ 
nomic and political unit, 180-81 
Ministers, The, the Englishman calls 
“The Government,” 83; are the 
Government, 84; executive au¬ 
thority vested in, 200-1; named 
by House of Commons, 201 
Ministries, Modern English, merely 
committees of the House of Com¬ 
mons, 13; selected by leader of 
majority in House of Commons, 
42 

Minority, The, accorded representa¬ 
tion on committees, 97; has its 
own party organization, 98 
Money in politics, Purchasing power 
of, 125 

Montesquieu on the Whig polity in 
England, 55-56; followed by the 
makers of the federal constitution, 
56 

Moral and social questions not in the 
field of federal authority, 195 
Moralization is by life, not by statute, 
197 

Nation, A, in its stage of social 
development, 28-30, 34; in its 
second stage of political develop¬ 
ment, 30, 34-37; in its third stage 
of agitation, 37-40; fourth stage 


of constitutional development, 40; 
life-processes of making a, to be 
seen, 48; called into being by 
Webster, 49; the nation and the 
President, 68; has risen to the 
first rank in power and resources, 
78; regards the House as a piece 
of law-making machinery, not a 
deliberative assembly, 109 

Nationalizing process, Steady move¬ 
ment of the, 47-49; limitations 
of the, 49-50; contribution of par¬ 
ties to, 218-20 

New England States in most respects 
of a piece, 180 

Newspapers, Influence of, 102-3; 
reflect local not national condi¬ 
tions, 126 

Newton vs. Darwin in development of 
political theories, 55-56 

Newtonian theory of the universe 
applied by the English Whigs to 
politics, 54-56, 199; some presi¬ 
dents have held to the, 70 

Nominating conventions, How man¬ 
aged, 61-62; danger of the method, 
63; party national committees con¬ 
trol, 63-64; pick out party leader 
from body of the nation, 65; in¬ 
stinctive feeling in, upon occasion, 
69 

Non-partisan local political action. 
Failure of, 208 

Nullification, Failure of, 175 

Officer of government, No peculiar 
dignity attaches to an, 19; has no 
authority outside the law, 20; 
cannot be a party to a suit, 148; 
ceases to be an officer when he 
oversteps his authority, 151; not 
so in other countries than England 
and America, 151-52 

Offices, Local, indispensable, as re¬ 
wards for party fidelity, 209 

Officials, No constitutional machin¬ 
ery provided for choosing the thou¬ 
sands of, 210 

Opinion, Privilege of independent 
local, secured by the Constitution, 
192 

Opinion, Public, the atmosphere of 



232 


INDEX 


every government, 20; organized 
and unorganized, 21; institutions 
the creatures of, 22-23; action 
sobering to, 39; and party cen¬ 
tred in a popular President, 69; 
the House not the organ of, 109; 
the law of the union of House and 
Senate, 110; the President nearest 
to, 110; homogeneity of, in the 
East and North, 118-19; variety 
of, represented in the Senate, 119; 
no national organ of, 126; rela¬ 
tion of the courts to, 171-72 

Opinions, Two kinds of strong judi¬ 
cial, 194 

Parliament, The first, in England, 7; 
original purpose of, 10-11; rela¬ 
tion of, to the government, 11-13 ; 
what the Whigs strove to make, 
55; the grand assize, to criticize 
and control the Government, 84; 
has remained separate and waits for 
Government action, 87 ; can ignore 
Magna Carta and the Bill of Rights 
unchecked by the courts, 144; 
restrained only by public opinion, 
161; separation of, from the crown, 
that of the real from the nominal 
executive, 201 

Parliamentary English form of gov¬ 
ernment, 40 

Parties, Organization and operation 
of, in the United States, 198; con¬ 
trol the personnel of all branches 
of the government, 205; give co¬ 
herence to the action of political 
forces, 206; test their hold upon 
public opinion only by elections, 
207; cannot form and reform for 
different purposes, 208; dispersion 
of offices and of functions and au¬ 
thorities have produced, 211; 
means of cooperation through, 211; 
at once necessary and disreputable, 
214; nationalizing influence of 
great, 217-18; our real body 
politic, 218-20; reverence for, 
an obstacle to reform, 220-21; 
new uses for, 221; must be made 
instruments, 222 

Party, a distinct authority outside 


formal government only in United 
States, 211; in other governments, 
is indistinguishable, 212; control 
of, over government, uncertain, 
216; must be made responsible, 
220 

Party authority, Extraordinary de¬ 
velopment of, 206 

Party government, in the United 
States, 198-222; closely knit im¬ 
perative discipline of, 205; re¬ 
quirements of party managers, 206- 
9; necessity for party machines, 
209; local offices indispensable 
to party discipline, 209; to what 
peculiarities of, are due, 210, 213; 
necessary and beneficial, 210; 
machinery of, nominally represen¬ 
tative, 216 

Party majorities in England are the 
government, 213 

Party managers, Irresponsible pri¬ 
vate, 210-11; difficult business of, 
213-14 

Party national committees control 
nominating conventions, 63-64 

Party objects, The accomplishment 
of, the whole art of statesmanship, 
54 

Party programs made up by conven¬ 
tions controlled by politicians, 213 

Passions, Great, in a whole popula¬ 
tion, find a great spokesman, 36 

Paternalism, 195 

People, A living, needs not a master 
but a leader, 34; no people can be 
given the self-control of maturity, 
53; we are an industrial, and too 
“practical, ” 187; incapable of 
wielding power assigned them, 210; 
revolt of, against party bosses, 214 

Petition of Right, The, a part of the 
written constitution of England, 22 

Political liberty, see Liberty, Politi¬ 
cal. 

Politicians not clear theorists, 55; 
only limits likely to be observed 
by, 179; distinction between, and 
statesmen, 212 

Politicians, professional, Machinery 
of, cannot be supplanted, 214; 
disrepute of, unconstitutional, 214 




INDEX 


233 


Politics, Purchasing power of money 
in, 125; provincialism, one of the 
serious difficulties of, 126; unity 
and coherence in our, 217 

Poor man, Interest of the, in coun¬ 
try’s prosperity, greater than that 
of the rich man, 115 

Power a positive not a negative 
thing, 106 

Powers, granted to and denied to Con¬ 
gress, 148-49; denied the states, 
149; our constitutions appor¬ 
tion, 149 ; definition of, by makers 
of Constitution, 173; distribution 
of, among States, is the localiza¬ 
tion of constitutional understand¬ 
ings, 183 

Presidency, The, has varied with the 
man and the circumstances, 57- 
59, 69; from 1789 to 1825, 57; 
during Jackson’s time, 58; from 
1836 to 1861, 58; under Mr. Lin¬ 
coln, 58; from 1865 to 1898, 58- 
59; since the war with Spain, 59; 
how nominations for the, are made, 
61-62; cabinet officers in line of 
succession for, 64; what the Presi¬ 
dent has sagacity and force to make 
it, 69; the cabinet an index of 
the theory of, 77; future develop¬ 
ment of, 80; succession to, 132 

President, The, of the United States, 
not expected to lead Congress, 40- 
41; conceived upon the model of 
the English king of the eighteenth 
century, 43-44; chapter on, 54- 
81; easier to write of, than the 
presidency, 54, 57; balanced off 
against Congress, 56; made only 
the legal executive by makers of 
the Constitution, 59, 79; has be¬ 
come leader of his party, and of 
the nation, 60, 79; r61e of party 
leader forced upon him, 60; choice 
of, by party conventions, 61-62; 
no training school for, 63-64; men 
best prepared to be, 64; kind of 
man selected for, 65-66; executive 
and political powers of, 66-67; 
leader of his party, 67, 107; po¬ 
litical leader of the nation, 68; 
or both, 69; at liberty to be as big 


as he can be, 70; personal force of, 
perfectly constitutional, 71; his 
relations with Congress, 72-73, 
201; veto power of, 73; has no 
access to floor of Congress, 73, 202; 
made by the power of veto more 
powerful than the king of Eng¬ 
land, 74; power behind messages 
of, 74; choice of cabinet by, 75; 
cannot be the actual executive, 76; 
may be like or more than his cabi¬ 
net, 77; his control of the foreign 
relations of the nation, 77-78; 
only twice decisively influential, 
78; summary of duties and in¬ 
fluence of, 78-81; tax on, of ap¬ 
pointments to office, 79; can 
secure his own relief, 80-81; 
should be less of an executive and 
more of a director, 81; intended 
to be a reformed and standardized 
king, 82; not leader of the Gov¬ 
ernment as a whole, 107; the 
executive in the hands of, 107 ; 
difference between the Speaker 
and, 108; may appeal to the 
nation, 108; has most direct ac¬ 
cess to public opinion, 110; our 
one national figure, 127, 202; 
can form opinion by his own di¬ 
rect influence, 127; condescen¬ 
sion of older senators towards, 130; 
an amateur to the professional 
senator, 130; relations of, with 
the Senate, 138-40; policy and 
duty of, to treat Senate as an ex¬ 
ecutive council, 140; a controlling 
power in blending contending 
elements, 141; his isolation, his 
exaltation, 202; cooperatively 
bound to the houses by machinery 
of party, 203; controls 'personnel 
of the executive department, 205; 
consolidation of executive under, 
206; power of, as a national boss, 
215; restrained by his position, 
215 

President pro tempore of the Senate, 
131-33 

Privileges, The maintenance of, con¬ 
tended for, in Magna Carta and 
other constitutional documents, 7-9 



234 


INDEX 


Protestant Reformation, The con¬ 
victions of the, stirred all ranks of 
men, 36 

Provincialism in politics, 126; in 
the East, 127 

Prussia under Frederick the Great, 
33-34; her dependent bureau¬ 
cracy, 35, 36 

Public opinion, see Opinion, Public 

Purpose, A common, the result of 
common counsel, 30 

Recognition by the Speaker in House 
of Representatives, 92-93 

Reed, Thomas B., on the House of 
Representatives, 88 

Referendum, The, and the initia¬ 
tive vs. representative assemblies, 
104 

Reform associations, 214 

Reforms, Easy to advocate, difficult 
to formulate, 39 

Regions as well as population must 
be represented, 1.16-18 

Representative assemblies, see As¬ 
semblies 

Representative principle, Abandon¬ 
ment of the, 188 

Republican party, Reverence for 
the, 221 

Revolution, see American Revolu¬ 
tion 

Rights, Abstract, difficult of execu¬ 
tion, 16; question of state and 
federal, involved in every great 
crisis, 174; in controversy over 
tariff legislation, 175; in the 
slavery question, 176; now upon 
us anew, 177-78 

Roosevelt, Theodore, Selection of 
cabinet by, 76 

Ruler, A great, makes great subjects, 
32; what one may do by way of 
leadership, 33 

Rules, Committee on, Powers of the, 
93-95 

Runnymede, The barons at, estab¬ 
lished constitutional government, 
2-3; the understanding at, 20; 
process of, can be reversed, 53; 
repeated by Marshall and Jack- 
son, 160-61 


Secretary of State, The, as candidate 
for the presidency, 64-65; the 
best statesmen needed to fill the 
office of, 78 

Sectional interests controlled by 
party discipline, 219-20 

Self-government, the consummate 
stage of constitutional develop¬ 
ment, 51; a form of character, 52; 
cannot be “given’’ to any people, 
53; to be gained by a definite 
process, 53; test of the processes 
of, 188-90, 196 

Senate, The, doubtless meant to be 
a part of the Government, 86; 
jealous of rights in legislation, 86; 
naturally unlike the House, 87; 
represents the States as political 
units, 87; a place of free and 
prolonged debate, 88, 135; lead¬ 
ers of, must counsel with the 
Speaker, 98; a council, not an 
organization, 99, 106; relations 
between the House and, not 
cordial, 106, 109-10; guided by 
a small group of senators, 107; 
chapter on the, 112-41; difficult 
to form a just estimate of, 112; 
a body of individuals, 113; repre¬ 
sents the country, not the people, 
113-14, 116; mistaken criticism 
of, 114; represents the individual 
parts of the country, 117-18, 202; 
the population in its variety not 
its numbers, 119-20; has kept its 
original rules of debate and pro¬ 
cedure, 121; methods of getting 
seats in, 123-25; influence in, de¬ 
pendent on experience, not money, 
128; organization of, 130-35; 
the Vice President not a member 
of, 131; president pro tempore of, 
a vital political figure, 131-33; 
prepares its business through 
standing committees, 131, 133; 
leader of, the chairman of the 
majority caucus, 133; each party 
in, organized through its caucus, 
133 ; not controlled by committees, 
134; make-up of committees of, 
135 ; discussions in, the only means 
of making public business known, 




INDEX 


235 


135; difficult of coordination'with 
other organs of government, 135- 
36; looks upon the House as 
ephemeral, 136; personnel of, 
changes slowly,-136; party changes 
affect, but little, 137; leaders in, 
men proved by counsel, 137-38; 
relations of, with the President, 
138-40; under outside party con¬ 
trol, 203 

Senators, not mere legislators, but 
members of a great executive 
council, 122; reticence of, 123; 
majority of, obtain seats by 
legitimate methods, 127; the 
choice of the people, 128; salaries 
of, not large enough to command 
men of best abilities, 129; a body 
of representative American men, 
129; condescension of older, 
towards the President, 130 

Seward and Lincoln, and the Chicago 
convention, 62 

Sheriff, Legal impertinence of a, to 
governor, 204 

Slavery question, The, 176; sprung 
out of the actual movement of 
affairs, 177; social contrasts cre¬ 
ated by, 218-19 

Social differences cut deeper than 
economic, 218-19; becoming less 
obvious, 220 

South and West, The, not yet cen¬ 
tres of wealth or population, 117; 
more individuality in, 118; repre¬ 
sent the older America, 118 

Southern States, Community of in¬ 
terest of the, 180 

Spain, The war with, made foreign 
questions leading ones, and the 
President leader, 59 

Speaker, The, almost autocratic 
master of the House, 91; undis¬ 
puted party leader, 91; appoints 
all committees and controls their 
action, 91-92; controls debate, 
92-93; may determine what the 
House shall hear, 93; controls 
Committee on Rules, 94-95; the 
instrument as well as leader of the 
majority, 95; consulted by com¬ 
mittees, 97; next in influence to 


the President, 98; the impersona¬ 
tion of the House, 99; difficulty 
of, in appointing effective com¬ 
mittees, 100; in command of the 
House, 107 

Speech not the only vent for opinion, 
39 

Stagnation of peoples the rule, not 
the exception, 29 

State constitutions, Tests of, may be 
applied in the federal courts, 155-57 
State governments, Natural scope 
and limits of their powers, 49; 
development of United States 
would have been impossible with¬ 
out the, 50; the normal machinery 
of our legal adjustment, 51; no 
longer truly representative, 189- 
90; need reorganization along 
simpler lines, 191; reorganization 
of, 197; in their make-up Whig 
inventions, 198; structure of, 203 ; 
operation of, 204; complete dis¬ 
persion of executive in, 205 
State legislatures, Speakers of, party 
leaders, 91; powers of, 175; con¬ 
fidence in, impaired, 188-90 
State officers and legislators ap¬ 
pointed, not elected, 190 
State sovereignty, Old theory of, 
has lost its vitality, 178 
States, the, Dispersion of constitu¬ 
tional powers among, 41-42; could 
not be merged under one gov¬ 
ernment, 44; not one community, 
46; the constant making of, 48; 
essential, 49; our great contribu¬ 
tion to constitutional develop¬ 
ment, 50; variety of social and 
economic conditions in, 115-17; 
mistakes in making new, 121; 
restrictions placed upon, by their 
constitutions, 149; greater part 
of legal regulation left to, 179; 
not mere units of local govern¬ 
ment, 180; earlier, formed upon 
geographical lines, 181; differ¬ 
ences between groups of, must be 
recognized and provided for, 181- 
82; self-originated, self-sustain¬ 
ing, 182; possess the whole ordi¬ 
nary field of law, 183; are the 




236 


INDEX 


ordinary governments of the coun¬ 
try, 184; ill-considered legislation 
by, 186-87; must correct their 
own mistakes, 187; something 
wrong in their governments, 188 

States, The, and the federal govern¬ 
ment, 173-97; relation of, the 
cardinal question of our constitu¬ 
tional system, 173-74; principle 
of division of powers between, a 
simple one, 175; a question of 
vitality, 179; controversy springs 
out of actual movement of affairs, 
177; a fundamental question of 
constitutional law now upon us, 
178; division of powers between, 
at first normal and natural, 183; 
now at an unstable equilibrium, 
191; modification and transfer of 
functions between, along lines of 
alterations of interest, 194 

Statesman and politician, Distinction 
between, 212-13 

Statesmanship, The whole art of, 54; 
new tasks set for, 178, 180 

Statesmanship of control, vested in 
our courts, 157; also that of 
adaptation, 168 

Steering committee of the House, 91 ; 
of the Senate majority caucus, 134 

Supreme Court, Reticence of mem¬ 
bers of the, 122-23; adaptation 
of the Constitution in the hands 
of the, 158; constitutional deci¬ 
sions of the, made with scrupulous 
care, 162; has read the power 
of Congress under the Constitu¬ 
tion, 169-70 

Synthesis, not antagonism, the whole 
art of government, 106; a vital, 
lacking in our constitutional sys¬ 
tem, 109, 221 

Tariff legislation involved question 
of state and federal rights, 174-75 

Understanding, A definite, between 
governors and governed, 3, 7, 12, 
18, 20-22, 25, 37, 183, 222; not 
secured in Hungary, 6; in the 
United States, 9-10, 13, 14; of 
constitutional government, 50-52; 


acts destructive of, 71; discussion of 
public business necessary under, 
102; the individual has appeal to, 
in the courts, 143; in Magna 
Carta and the Bill of Rights, not 
defended by English courts, 144; 
our detailed and definite, 161-62 
Understandings, Vital constitu¬ 
tional, 183; our “practical ’* de¬ 
mands not favorable to, 187 
United States, Place of the, in con¬ 
stitutional development, 25-53; 
can the, be regarded as a com¬ 
munity? 26, 51; radical changes 
operating for unity in the, 46—48; 
have had no frontier since 1890, 
48; impossible to generalize about 
the, 51; not a homogeneous com¬ 
munity, 180; divided socially and 
economically into regions rather 
than States, 180-81 

Veto power, of the President, 59-60, 
73; in England, 73-74 
Vice President, The, and his relations 
to the Senate, 130-31 
Voters, Impossible task implosed on, 
189-90, 216; united by parties 
upon national questions, 217; 
must have fewer things to act 
upon, 221-22 

Washington selected cabinet from 
both parties, 75; made constant 
use of his colleagues, 80 
Webster, Daniel, called the nation 
into full consciousness, 49 
Webster-Hayne debate, The, the 
central dramatic force of all our 
history, 48-49 

Westward expansion the chief fac¬ 
tor of national feeling, 48 
Whig contest with the crown, 198-99 
Whig theory of political dynamics. 
The, 54; like the Newtonian 
theory of the universe, 54—55; a 
system of checks and balances, 55— 
56; some presidents have held to, 
70; extraordinary influence of, in 
American politics, 203 ; reductio ad 
particulam, 204 ; enacted into law, 
205; have we had enough of ? 222 



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